HomeMy WebLinkAboutExhibitINTERLOCAL DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF MIAMI
AND
THE SCHOOL BOARD OF MIAMI-DARE COUNTY, FLORIDA
DATED: , 2007
INTERLOCAL DEVELOPMENT AGREEMENT
This Interlocal Development Agreement ("Agreement" or "Development Agreement" or
"Interlocal Development Agreement") dated this day of
2007 and effective as of
the day of 2007 ("Effective Date") , is entered into by and between The School
Board of Miami -Dade County, Florida, a body corporate and politic existing under the laws of the
State of Florida, its successors and assigns (hereinafter referred to as the "Board" or "School
Board"), and the City of Miami, Florida, a Florida municipal corporation created and existing
under the laws of the State of Florida, its successors and assigns (hereinafter referred to as the
"City"). The School Board and the City are sometimes referred to herein individually as a
"Party", and collectively as the "Parties".
RECITALS
WHEREAS, Section 163.01, Florida Statutes, the "Florida lnterlocal Cooperation Act
of 1969," authorizes local government units to enter into agreements for the mutual benefit of
governmental units; and
WHEREAS, pursuant to Sections 1013.33 and 163.3177, Florida Statutes, it is the policy
of the State of Florida to require the coordination of planning between school boards, and local
governments to ensure that plans for the construction of public educational facilities are
facilitated and coordinated; and
WHEREAS, the City has experienced extraordinary growth in student population since
its incorporation and anticipates such growth will continue over the next several years as a result
of changing demographics and approved development projects within the City's boundaries; and
WHEREAS, a public high school of law studies, homeland security, and forensic
sciences ("High School") within the City's boundaries will help to address the grades 9-12
educational needs of the City's residents, provide a specialized instruction school for those
particular career paths, and help to alleviate overcrowding in other schools presently serving City
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residents; and
WHEREAS, the School Board and the City recognize the benefits that will accrue to
students and the community by placing the High School in the same structure with the City's
planned public College of Policing ("College") facilities and by sharing certain facilities between
the High School and the College; and
WHEREAS, the City is the owner of certain real property located at 401 Northwest 3`d
Avenue, Miami, Florida ("Adjacent Lot"), and 405 Northwest 3`d Avenue, Miami, Florida
("Miami Police Headquarters"); and
WHEREAS, on November 9, 2006, pursuant to Resolution No. 06-0643, the City
Commission authorized the use of the Adjacent Lot and the Miami Police Headquarters parcels,
being referred to collectively as the "Property", in order to establish a building site for the
College; and
WHEREAS, a portion of the Property ("Portion of the Property"), as described in
Exhibit "A", will be used to house the High School and College; and
WHEREAS, Section 166.021, Florida Statutes, authorizes the City to exercise any power
for municipal purposes, except when expressly prohibited by law; and
WHEREAS, Section 1013.16, Florida Statutes, governs the specific term length for the
lease by the School Board from the City of certain portions of the Facility for the High School;
and
WHEREAS, the City Commission, pursuant to City Resolution No.
adopted , 2007 has agreed to allow use of the Portion of Property for educational
purposes associated with the High School and has authorized the City Manager to negotiate and
to execute an Interlocal Development Agreement with the School Board regarding the financing,
design, construction, use, operation, and maintenance of the College and High School on the
Property; and
WHEREAS, the School Board, pursuant to agenda item- F-3, at its September 5, 2007
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meeting likewise authorized the Superintendent to negotiate and to execute an Interlocal
Development Agreement and a Lease and Operating Agreement ("Lease" or " Lease and
Operating Agreement") with the City regarding the financing, design, construction, use and
maintenance of the College and High School on the Portion of Property; and
WHEREAS, the Parties to this Interlocal Development Agreement have mutually
expressed a desire to enter into this Agreement to provide a framework for the financing, design
and construction of the College and High School; and
WHEREAS, the School Board and the City have determined that it is necessary and
appropriate to enter into this Agreement to clarify various obligations between the School Board
and the City related to financing, design and construction of the College and High School on the
Property; and
WHEREAS, the School Board and the City have determined that it is in the best interest
of the Parties that the School Board award and execute a Contract for Construction ("Contract for
Construction") of the Facility subject to the terms and conditions set forth in this Agreement; and
WHEREAS, the School Board and the City have determined that it is in the best interest
of the Parties that the City be responsible for the management of the construction of the Facility;
and
WHEREAS, the School Board will assign its rights, responsibilities and obligations
under its Contract for Construction of the Facility to the City, and the City will accept and
perform all of these in accordance with the requirements of the Contract for Construction; and
WHEREAS, the School Board and the City have determined that it is in the best interest
of the Parties that the City be responsible for the design of the Facility subject to the terms and
conditions set forth in this Agreement; and
WHEREAS, the School Board and the City have determined that it is necessary and
appropriate to enter into the Lease and Operating Agreement to clarify various obligations
between the School Board and the City related to financing, uses, operations and maintenance of
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the College and High School on the Property, and the terms of the Lease and Operating
Agreement shall be in accordance with the attached Interlocal Operating Agreement Term Sheet,
attached hereto as Exhibit "B", which Lease and Operating Agreement shall be presented to the
City Commission for its approval prior to execution.
NOW, THEREFORE, in consideration of the terms and conditions, promises and
covenants hereinafter set forth, the Parties agree as follows:
Section 1. Definitions. For the purposes of this Agreement, the following words shall have
the meanings attributed to them in this Section:
"Board" has the meaning ascribed to it in the opening paragraph of this Development
Agreement as well as the Board's successors and/or assigns.
"Board's Development Percentage Share" means the Board's percentage share of design
and construction expenses related to the development and construction of the Facility, which shall
be equal to forty-one percent (41 %) of the Total Project Cost which has been determined based
on an approximate percentage of the total Facility square footage determined during design
development. The City acknowledges and agrees that the Board's portion of Total Project Cost,
net of any costs associated with the equipment for the firing range, and except as provided in
Sections 10, 11 and 28 herein, shall not exceed $14,300,000.00.
"Board's Project Manager" means the Board's representative in all matters dealing with
the design and construction of the Building. The Board's Project Manager shall be available at all
times during normal business hours.
"Building" or "Facility" or "Law Enforcement Training Facility" shall mean the structure
containing approximately 112,316 square feet of enclosed program areas to be designed and
constructed upon the Property to be commonly referred to as the Law Enforcement Training
Facility that shall contain the College and High School as depicted in the Conceptual Site Plan.
"City" has the meaning ascribed to it in the opening paragraph of this Development
Agreement as well as City's successors and/or assigns.
"City's Development Percentage Share" means the City's percentage share of design and
construction expenses related to the development and construction of the Facility, which shall be
equal to fifty-nine percent (59%) of the Total Project Cost which has been determined based on
an approximate percentage of the total Facility square footage determined during design
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development.
"Conceptual Site Plan" means the Conceptual Site Plan attached as Exhibit "C".
"Construction Documents" means the final working drawings and specifications prepared
by the Project Architect/Engineer, which shall include, without limitation, the following
information: definitive architectural and landscape architectural drawings; definitive foundation
and structural drawings; definitive electrical and mechanical drawings; and plans for all lighting
facilities affecting the exterior appearance of the Facility.
"Contract for Construction" shall mean the agreement entered into between the Project
Construction Manager and the School Board which will be amended, and certain of its rights and
responsibilities will be assigned to the City for construction of the Project.
"Days" as used in this Agreement shall mean calendar days, unless otherwise specified.
"Due Diligence Investigations" has the meaning ascribed to it in Section 28.
"Emergency Circumstances" has the meaning ascribed to it in Section 12.1.
"Execution Date" means the date this Agreement is fully executed by the Parties.
"Law Enforcement Training Facility" shall have the meaning ascribed to it under the
definition of "Building".
"Lease" or "Lease and Operating Agreement" shall have the meaning ascribed to it in
Section 13.
"Lease Term Sheet" means the basic lease terms attached to the Interlocal Development
Agreement as Exhibit "B", containing the key basic terms that will be included in the final Lease
and Operating Agreement .
"Legal Requirements" or "Applicable Law" means applicable Federal, State and local
laws, Florida Statutes, codes, School Board Rules, City and Miami -Dade County ordinances,
orders, judgments, decrees and injunctions from courts having jurisdiction over the Property,
rules, and requirements of Federal, State and local boards and agencies with jurisdiction over the
Property, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and
extraordinary, which may be applicable to the Property or any part of it.
"Notice to Proceed" shall have the meaning ascribed to it in accordance with the Contract
for Construction.
"Party" and/or "Parties" means City and/or Board.
"Person" means any natural person, trust, firm, partnership, corporation, joint venture,
association, or any other legal or business entity investment enterprise.
"Personal Property" means all property owned and used by Board or the City, as the case
may be, in connection with and located within the Building, subject to rights of any secured party
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or title retention agreement of a third party.
"Project" means Law Enforcement Training Facility, designed and constructed in
accordance with the Conceptual Site Plan and Construction Documents, with the cost of
construction estimated at Thirty -Seven Million Four -Hundred Seventy Thousand Dollars
($37,470,000).
"Project Architect/Engineer" means Spillis Candela DMJM, the firm responsible for the
development of the Construction Documents.
"Project Construction Manager" means Pirtle Construction, Inc., the firm responsible for
the construction of the Facility in accordance with the Contract for Construction, or such other
firm as mutually agreed to by the Parties.
"Portion of Property" means the approximately 1.4 acre parcel of real property located
within the City of Miami, Florida, on which the Law Enforcement Training Facility will be
constructed, which is legally described in Exhibit "A" of this Agreement, together with all
appurtenant rights belonging and all buildings and improvements now or hereafter located on or
under such land including, without limitation, the Law Enforcement Training Facility.
"Section"; "subsection", "paragraph", "subparagraph", "clause", or "sub clause" followed
by a number or letter means the section, subsection, paragraph, subparagraph, clause or sub
clause of this Interlocal Development Agreement so designated, unless otherwise indicated.
"Specialty High School" or "High School" or "School" shall mean the approximately
45,400 square foot, 500 student station high school to be operated by the Board as a School of
Law Studies, Homeland Security and Forensic Sciences. The actual square footage of the
Specialty High School shall be calculated after completion of construction by the Project
Architect/Engineer. The Specialty High School shall include all lobby space, hallways, restrooms,
vertical penetrations for mechanical equipment, and areas occupied by utilities, stairs and
elevators on those floor(s) where the Specialty High School is the only user.
"Substantial Completion" as used herein shall have the meaning ascribed to it in the
Contract for Construction.
"Term" has the meaning ascribed to it in Section 7.
"Total Project Cost" as used in this Interlocal Development Agreement shall be defined
as all costs, of any type or nature, incurred by either Party in connection with the design and
construction of the Facility, including contractors, design professionals, and consultants. These
costs shall include, but are not necessarily limited to, all costs related to Programming (e.g.
geotechnical, survey, printing and advertising), CM at -Risk Pre -construction services, Design
Services (inclusive of any change orders or additional services mutually agreed to by the Parties),
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City Initials
Construction (e.g. all materials, labor and equipment for construction, including but not
necessarily limited to all on-site/off-site work, millwork/carpentry, specialties, equipment, built-
in furnishings, CCTV system, and door security system), contingency, building code compliance,
construction material testing, estimating & scheduling, systems test & balance, photography
services, and Furniture Fixtures and Equipment (FF&E) that is included as part of the
Construction Documents, other than free-standing FF&E within the Facility. Total Project Cost
does not include expenditures related to due diligence as outlined in Section 28 or any elective
changes to the scope of work as may be requested by either party.
Section 2. Incorporation of Exhibits. All exhibits referenced in or attached to this
Agreement are incorporated herein as if fully set forth in this Agreement.
Section 3. Controlling Provisions. In the event of a conflict between the
provisions of this Agreement and the provisions of the Lease and Operating Agreement relating
to the design and construction of the Facility, the provisions of this Agreement shall control and
shall operate to supersede or amend the conflicting provision or provisions of the Lease. In the
event of any conflict between any of the provisions in this Agreement, the following order of
precedence shall control: (1) amendments to this Agreement, with those of a later date
controlling over those of an earlier date; (2) this Agreement, with the more stringent requirements
controlling over the less stringent requirements; (3) the Construction Documents, with those of
the later date controlling over those of an earlier date; and (4) the other exhibits to this
Agreement.
Section 4. Recitals Incorporated. The above recitals are true and correct and
incorporated herein.
Section 5. Purposes. The purposes of this Agreement are to outline the rights and
responsibilities of the School Board and the City with respect to the sharing of costs and to set
forth their respective responsibilities in financing the design and construction and in the
constructing of the College and High School on the Property.
Section 6. Enabling Ordinance and Resolutions. The School Board and City
agree to approve and keep in effect such resolutions and ordinances as may be necessary to meet
the purposes of this Agreement.
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City Initials
Section 7. Term of Agreement. This Agreement shall commence upon the
Effective Date after full execution of the Agreement by both Parties and completion of the School
Board's Due Diligence activities, as provided in Section 28, and shall terminate effective with the
commencement date of the Lease and Operating Agreement, other than for any obligations or
requirements of either Party under the terms of the Interlocal Development Agreement dealing
with, but not necessarily limited to, close-out of all owner and Project Construction Manager
obligations under the Contract for Construction, resolution of any outstanding claims, and
resolution of any outstanding financial obligations by the School Board, which shall survive the
termination of this Agreement until such obligations have been fully resolved. Other than for
default, which default is not cured in conformance with the provisions of Section 29, or as
provided in Sections 11 and 28, neither party shall have the ability to cancel this Agreement
subsequent to the issuance of a Notice to Proceed to the Project Construction Manager for
commencement of construction activities.
Section 8. Authority. Each of the Parties represents, covenants, and warrants that
it has a valid right and authority to enter into this Agreement.
Section 9. City Ownership of Property. The School Board hereby acknowledges
that the City is the sole owner in fee simple of the Property and that the City shall continue to be
the sole owner in fee simple and shall retain fee simple title of the Property, including all
improvements constructed thereon. The City and School Board shall enter into the Lease and
Operating Agreement for the Portion of Property where the Facility will be constructed.
Section 10. Desi2n Costs and Funding. The City has contracted with the Project
Architect/Engineer for the design of the Facility, which work shall be completed in final form and
submitted to the City's Building Department for plan review and permitting. As a condition to
entering into this Agreement, the Parties acknowledge that School Board staff participated in the
design development process for the Facility and received the design plans and Construction
Documents for review and approval, prior to issuance of the construction permit. However,
review and approval of the Construction Documents by the Board shall not relieve the Project
Architect/Engineer from the responsibility of complying with all applicable codes, rules and
regulations dealing with the design of a public educational facility. The City further
acknowledges that the portion of the Construction Documents depicting the High School must be
reviewed and approved by an individual certified in Florida Building Code Compliance for
Educational Facilities, prior to issuance of a building permit. Directions to the Project
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Architect/Engineer shall be given through the City's Department of Capital Improvement Projects
("CIP"). All of the costs of said design shall be paid by the City, and forty-one percent (41 %) of
said design costs (in a total amount not to exceed $886,998, including contingency), shall be paid
to the City by the School Board as reimbursement by the School Board for the City's upfront
payment of the design fees. Although the Parties intend that the contribution by the Board for
design costs is not to exceed Eight Hundred and Eighty Six Thousand Nine Hundred and Ninety -
Eight Dollars ($886,998), in the event the Board and City mutually agree to design changes that
go beyond this amount, the Board and City agree to maintain the allocation of costs on a forty-
one percent/fifty-nine percent (41%-59%) basis, provided the Board's portion of the Total Project
Cost, net of any costs associated with the equipment for the firing range, does not exceed
$14,300,000, except as provided herein and in Section 11.
The School Board shall reimburse the City the actual cost incurred for design as of the
Effective Date, within thirty (30) days of the Effective Date, less the City's 50% portion of the
Phase II Environmental Assessment, as stipulated in Section 28. The balance of design monies,
including construction administration services, shall be reimbursed to the City within thirty (30)
days of receipt of invoices from the City indicating the School Board's proportionate share of
said services. Mutually agreed to design changes that increase the School Board's share of
design cost will be reimbursed as provided above for construction administration services.
Design changes required due to errors or omissions on the part of the Project Architect/Engineer,
shall be the sole responsibility of the City. Notwithstanding the above referenced 41%/59% cost
allocation, should the design change be for the sole benefit of one Party, that Party shall be
responsible for one hundred percent (100%) of both the increased design costs and any related
increased construction costs, which costs shall not be deemed part of the Total Project Cost.
Other than as stipulated in Sections 11 and 28, and subject to the provisions of Section
29, should the School Board decide not to proceed with its involvement with the Facility prior to
the issuance of a Notice to Proceed to the Project Construction Manager for the commencement
of construction activities, this Agreement shall terminate and the School Board shall reimburse
the City for one hundred percent (100%) of the cost for the redesign of the Facility, in a total
amount not to exceed One Million Dollars ($1,000,000), in order to allow the City to have sole
use of the Facility. Other than as stipulated in Section 11, and subject to the provisions of Section
29, should the City decide not to proceed with its involvement with the Facility prior to the
issuance of a Notice to Proceed to the Project Construction Manager for the commencement of
construction activities, this Agreement shall terminate without payment by the School Board of
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any fees or penalties whatsoever, including the Board's proportionate share of Building design
fees or the cost to redesign the Facility in order to allow the City to have sole use of the Facility.
The Parties agree that other than with respect to obtaining any required approvals from
other jurisdictional entities for work not located on the Property (e.g. — WASD, DERM, etc), the
City's Building Department shall retain and exercise jurisdiction over all plan review and
approvals, construction inspection services and other actions respecting construction of the
Facility, and these functions shall be included as the City's responsibilities. In this regard, both
parties agree to use their best efforts to expedite the permitting and/or review process for those
functions or activities under their respective control. However, the Board shall retain the right to
inspect the work at all times during normal business hours, and provide its comments/concerns to
the City relating to the quality and progress of the work.
Section 11. Facility Construction.
The City may not materially alter or modify the plans and specification for the High
School work, once approved by both Parties, without prior written authorization from the Board's
Project Manager. The City shall construct the Facility in conformance with the permitted
Construction Documents, and in accordance with all applicable building codes, in order to
provide a complete and properly functioning Building. The City acknowledges and agrees that
time is of the essence in the construction of the Facility, and it shall make every reasonable effort
to assure compliance by the Project Construction Manager of the 546 calendar day construction
schedule of the Contract for Construction.
The Parties agree that the School Board shall retain responsibility for finalizing all
negotiations with the Project Construction Manager to determine a Guaranteed Maximum Price
for the construction of the Facility, under the Contract for Construction, and will, if negotiations
are successful, contract with the Project Construction Manager for the construction of the
Facility. Representatives from CIF shall actively participate in all such negotiations. In the event
the Guaranteed Maximum Price exceeds $37,470,000, inclusive of owner's contingency
allowance, the Parties shall have the right, but not the obligation, to: (1) value engineer the
project so that the Guaranteed Maximum Price is reduced; and/or (2) the City may identify
additional funds to cover the increased contract price. In the event the Parties do not agree on a
mutually acceptable Guaranteed Maximum Price, and a Contract for Construction is not awarded
by December 19, 2007, unless such date is extended by mutual agreement of the Parties, then this
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1 1 City Initials
Agreement shall terminate and the Parties shall each be released thereby from any further
obligations hereunder accruing after the effective date of such termination, including the cost to
allow the City to have sole use of the Facility, except that the Board shall continue to be required
to reimburse the City for its portion of Facility design costs incurred through the date of such
termination, which amount shall not exceed $886,998. Said amount shall be reimbursed within
sixty (60) days of the date of such termination.
Subsequent to the School Board executing the Contract for Construction with the Project
Construction Manager, the School Board shall assign, and the City shall accept, certain of the
rights, responsibilities and obligations under the Contract for Construction. The City's CIP shall
thenceforth administer the Contract for Construction on behalf of the City and the School Board.
The Parties agreement to the terms and conditions of said Assignment shall be a condition
precedent to the Effective Date of this Interlocal Agreement.
Section 12. Facility Construction Costs and Funding. The High School is listed on the
Board's Five -Year Educational Facilities Plan adopted pursuant to Section 1013.35, Florida
Statutes, currently in effect and will continue to be listed on the Five -Year Educational Facilities
Plan through its completion. The Superintendent of the District has included in the School
Board's Fiscal Year 2007-2008 Capital Budget, sufficient funding for the financing of the
Board's Development Percentage Share, from legally available funds including, without
limitation, proceeds of its non -voted local option capital outlay millage levied pursuant to Section
101 ] .71 Florida Statutes.
The City represents and warrants that it has set aside at least $19,697,002 from its
$50,969,205 City of Miami, Florida Limited Ad Valorem Tax Bonds, Series 2007B (Homeland
Defense/Neighborhood Capital Improvement Projects) (the "Series 2007B Bonds"), issued by the
City on July 10, 2007 in order to fully fund its obligations under this Agreement. The City may
substitute other funding sources as may become available. The City recognizes that the Board is
relying on this representation.
Both Parties shall deposit their portion of construction moneys into an escrow deposit
fund pursuant to an escrow agreement ("Escrow Agreement") between the parties and a
designated escrow agent agreed to by both parties ("Escrow Agent"). All terms and conditions
for deposit of the escrow funds and use of the escrow funds for payment of the Project
Construction Manager shall be as more specifically outlined in the Escrow Agreement.
Agreement by the Parties to the form and substance of the Escrow Agreement is a condition
precedent to the Effective Date of this Interlocal Agreement.
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Section 12.1 Change Orders.
In the event changes to the work are determined by the City to be necessary in the
ordinary course of the construction project due to field conditions or due to changes required by
the City's Building Department or other jurisdictional entities, including non -monetary field
directives or monetary adjustments within each party's approved contingency amounts
(collectively "Change Items"), the City shall submit such Change Item request to the Board's
Project Manager in writing for his approval, which written approval shall not be unreasonably
withheld or delayed. In the event the City does not receive a written response from the Board's
Project Manager within three (3) business days of his receipt of the Change Item request, said
Change Item shall be deemed approved. Any response from the Board's Project Manager not
approving a Change Item request shall include the reasons for not approving same so the City
may attempt to address the reasons given. The City's total approved Change Item allocation will
not exceed the total amount approved by the City Commission for the City's share of the
construction costs.
In the event changes to the work are determined by the City to be necessary or required,
and requires the use of funds in excess of the parties approved construction amounts, or changes
in Project scheduling and completion dates ("Change Order"), the City shall submit such Change
Order request to the Board's Project Manager for presentation to the Board for its review and
approval as soon as practicable.
Notwithstanding the above, the City may proceed with a change in work in the event the
City determines that circumstances require immediate action in an effort to protect life, safety or
property, or due to field conditions requiring immediate action ("Emergency Circumstances"). If
such Emergency Circumstances occur, the City shall provide the Board's Project Manager with a
Change Item or Change Order request, as applicable, within twenty-four (24) hours of the action
taken by the City to address the Emergency Circumstances. The Board's Project Manager shall
review the Change Item and/or Change Order request and respond within the time frames set
forth above.
In the event of a dispute between the parties regarding any Change Item or Change Order
request, the City may, at its risk, proceed with the respective change to the work, and upon
request of either Party, the City and Board, through their respective designees, shall resolve any
outstanding issues dealing with the work and/or its associated costs, in accordance with the
process outlined in Section 29.
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The Board's Project Manager shall be notified of and included in all construction
meetings and conferences dealing with the work, and participate fully in the process of
determination of Substantial Completion, generation of punch list items and determining final
acceptance of the High School portion of the Facility. The City covenants and agrees that final
payment will not be made to the Project Construction Manager and final acceptance of the
Facility given, until the Board's Project Manager concurs with same. All issues relating to design
that occur during construction shall be managed by City staff, in coordination with School Board
staff.
The School Board may request the City to execute a Change Order for elective changes
to the scope of work should the Board agree to assume the full cost of such Change Order, in
which case the Board shall pay the Change Order amount in the manner provided in Section 12 of
this Agreement. The City may execute a Change Orders for elective changes to the scope of
work, as well as Change Orders necessitated by the City's failure to construct (or cause
construction of) the Project substantially in accordance with the Construction Documents, with
the City to assume the full cost of such Change Order. Unless otherwise agreed to by the parties,
Change Orders initiated by either party for elective changes shall not be paid from the
contingency funds.
Section 12.2 Completion of Project. Upon Substantial Completion of the Project, the
City and Board, with the assistance of the Project Construction Manager, shall each provide a
"punch list" (collectively, the "punch list") identifying the corrective work to be completed.
Within thirty (30) days after delivery of each punch list, the City shall cause the Project
Construction Manager to commence correction of punch list items and diligently pursue such
work to completion.
Section 12.3 Interior Improvements and Office Furnishings. It is expressly
understood that the provisions of this Agreement pertaining to construction and funding
obligations are limited to the Project as defined and as specifically set forth in the Construction
Documents. The Board and the City shall each be responsible for the design, layout, cost,
provision, delivery and/or construction of interior improvements, FF&E that is not contained in
the Construction Documents, and installation of any free standing FF&E and any other personal
property not a part of the Construction Documents for use respectively by the Board or the City
exclusively (the "Interior Improvements"), as applicable. The Board shall be permitted to enter
the Property prior to Substantial Completion to arrange for the performance of its Interior
Improvements with the prior written approval of the City, provided that the Board's contractors
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constructing Interior Improvements shall do so in such a manner as to maintain harmonious labor
relations so as not to interfere with or delay the construction of the Project. All Interior
Improvements to be constructed and installed by the Board shall be reviewed by the City to
ensure that they do not negatively impact the weight bearing capacity of the floor, or the
building's electrical/air conditioning consumption or otherwise create an operational cost impact
that has not already been contemplated in the Construction Documents. In the event the City
determines that the Board's Interior Improvements will create such a negative impact, not
otherwise contemplated in the Construction Documents, then the City shall be deemed reasonable
in disapproving such Interior Improvement unless the Board assumes the cost of such changes
required to the Facility to accommodate the Interior Improvement negative impact and/or the
additional operational cost impact caused by the installation of such Interior Improvement.
Section 13. Lease and Operating Agreement. The School Board and the City shall
enter into the Lease and Operating Agreement for the lease and joint use of the Facility; said
Lease to commence concurrent with the termination of this Interlocal Development Agreement.
Terms of the Lease shall be as per the attached Interlocal Operating Agreement Term Sheet
(Exhibit "B").
Section 13.1 Capital Expenditures. Intentionally deleted.
Section 14. Permitted Uses. The School Board shall utilize the High School and
any other spaces within the Facility designated for joint use between the School Board and the
City for the sole purpose of a specialized instruction public high school, grades 9-12, for law
studies, homeland security, and forensic sciences. The City shall utilize the College and any
other spaces within the Facility designated for joint use between the School Board and the City
for the sole purpose of a law enforcement training facility. Any other use by the School Board or
by the City shall be subject to conditions set forth in the Lease
The City and the School Board agree that the Lease shall stipulate the common and joint
use areas within the Facility and the scheduling and other details of said common and joint use.
The City and the School Board further agree that the Lease shall stipulate any Police Priority Use
areas within or outside of the Facility for emergencies or other City contingencies and the
scheduling and other details of such Police Priority Use areas shall be set forth in the Lease.
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Section 15. Design and Construction Expenses Payment Procedures The Parties
will finance design and construction expenses at the percentages noted in Section 1 in the manner
set forth below.
The City shall pay expenses relating to the design of the Facility as invoiced by the
Project Architect/Engineer at the time they are due. A final accounting of all invoices shall be
provided to the Board at the completion of the permitting process. The City shall provide to the
School Board copies of invoices from the Project Architect/Engineer for construction
administration services subsequent to payment of said invoices by the City. Forty-one percent
(41%) of the total design fees, not to exceed Eight Hundred and Eighty Six Thousand Nine
Hundred and Ninety -Eight Dollars ($886,998), as stipulated above, shall be reimbursed to the
City by the Board as stipulated in Section 10 of this Agreement. The School Board shall also be
responsible to reimburse the City for its share of mutually agreed upon additional services by the
Project Architect/Engineer and those specifically requested by the School Board, as detailed in
Section 10 of this Agreement.
The City shall pay the Project Construction Manager for work in place accepted by the
City's Project Manager on a monthly basis utilizing the funds on deposit with the Escrow Agent.
Section 16. Obligations, Rights and Remedies Cumulative. The rights and remedies
of the Parties, whether provided by law, in equity or under this Agreement, shall be cumulative.
The exercise by any Party of any one or more of such remedies shall not preclude the exercise by
default or breach by any other Party. No waiver made by any Party with respect to performance,
manner or time of any obligation of any other Party or any condition to its own obligation under
this Agreement shall be considered a waiver of any rights of said Party with respect to the
particular obligations of any other Party or condition to its own obligation, or a waiver in any
respect in regard to any other rights of said Party.
No waiver of any breach of any of the covenants or conditions of this Agreement shall be
construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to
any further or succeeding breach of the same or similar covenant or condition. All waivers and
consents of the City or the Board to any act or matter must be in writing and shall apply only with
respect to the particular act or matter to which the waiver and/or consent is given and shall not
relieve either Party from the obligation, wherever required under this Agreement, to obtain the
waiver and/or consent, as applicable, of the City or the Board to any other act or matter.
Board Initials 16 City Initials
Section 17. Mitigation. The Parties hereby expressly acknowledge and agree that each
shall have an affirmative obligation to mitigate their respective damages as a consequence of a
default by the other.
Section 18. Claims for Federal or State Aid Payable. Should either Party obtain
any federal or state assistance, such assistance shall be for the sole use of the Party obtaining such
assistance and may not be claimed as a set-off of any costs by the other Party.
Section 19. Successors and Assigns. Should either the School Board or the City be
dissolved, abolished, or otherwise cease to exist, the successor governmental entities to said
entities shall be deemed to be the parties bound by this Agreement.
Section 20. Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of Florida.
Section 21. Severability. If any item or provision of this Agreement is held invalid
or unenforceable, the remainder of the Interlocal Agreement shall not be affected and every other
term and provision of this Agreement shall be deemed valid and enforceable to the extent
permitted by law.
Section 22. Notices. Any notices to be given hereunder shall be in writing and shall
be deemed to have been given if sent by hand delivery, recognized overnight courier (such as
Federal Express), or by certified U.S. mail, with return receipt requested, addressed to the Party
for whom it is intended, at the place specified, or as same may be modified from time to time. For
the present, the parties designate the following as the respective places to deliver notices:
If to the School Board:
Copy to:
The School Board of Miami -Dade County, Florida
Superintendent of Schools
1450 N.E. Second Avenue, Room 912
Miami, FL 33132
The School Board of Miami -Dade County, Florida
School Board Attorney
1450 NE 2 Avenue, Suite 400
Miami, Florida 33132
Miami -Dade County Public Schools
Facilities Planning Department
Administrative Director
1450 NE 2 Avenue, Suite 525
Miami, Florida 33132
Board Initials 17 City Initials
If to the City:
Copy to:
City Manager
City of Miami
444 S.W. 2nd Avenue, loth Floor
Miami, Florida 33130
Director, Department of Capital Improvements
City of Miami
444 S.W. 2nd Avenue, 8th Floor
Miami, FL 33130
Chief of Police
City of Miami
400 NW 3`d Avenue
Miami, FL 33130
City Attorney
City of Miami
444 S.W. 2°d Avenue, Suite 945
Miami, Florida 33130
Section 23. Amendments. It is further agreed that no modification, amendment or
alteration in the terms or conditions herein shall be effective unless contained in a written
document executed by the School Board and the City, or as otherwise authorized by the
respective Parties. The City Manager is hereby authorized to enter into non -substantive
amendments without the necessity of further City Commission approval.
Section 24. Indemnification. The School Board covenants and agrees that it shall
indemnify, hold harmless and defend the City, from and against any and all claims, suits, actions,
damages or causes of action arising from or in connection with the School Board's use and
occupancy of the Property during the term of this Agreement, for any personal injury, loss of life
or damage to property sustained in or about the Property, to the extent of the limitations and
sovereign immunity provisions included within Section 768.28, Florida Statutes, other than
damage or injury resulting from the negligence or improper conduct of City, its agents,
representatives or employees, or resulting from the City's failure to perform its obligations under
this Agreement.
The City covenants and agrees that it shall indemnify, hold harmless and defend the
School Board, from and against any and all claims, suits, actions, damages or causes of action
arising from or in connection with the City's use and occupancy of the Property during the term
of this Agreement, for any personal injury, loss of life or damage to property sustained in or about
Board Initials 18 City Initials
the Property, to the extent of the limitations and sovereign immunity provisions included within
the Section 768.28, Florida Statutes, other than damage or injury resulting from the negligence or
improper conduct of the School Board, its agents, representatives or employees, or resulting from
the School Board's failure to perform its obligations under this Agreement.
Nothing in this Interlocal Agreement is intended to operate as a waiver of the statutory
sovereign immunity or the limitations on liability of either Party.
Section 25. Insurance Rules and Regulations:
Section 25.1 Public Liability Insurance Subject to the provisions and monetary
limitations of Section 768.28, Florida Statutes (as may be amended), which limitations shall be
applicable regardless of whether such provisions would otherwise apply, and to the extent
permitted by law, the School Board and City shall each maintain either a public liability insurance
policy or an ongoing self-insurance program for public liability, automobile liability and worker's
compensation insurance, and shall provide reasonably satisfactory evidence of such insurance or
ongoing self insurance program to the other Party.
Section 25.2 Liability for Damage or Injury:
City Liability. Subject to the provisions and monetary limitations of Section 768.28,
Florida Statutes (as may be amended), which limitations shall be applicable regardless of whether
such provisions would otherwise apply, and to the extent permitted by law, the City shall not be
liable for any damage or injury which may be sustained by the School Board, or any person using
the Property, other than damage or injury resulting from the negligence or improper conduct of
City, its agents, representatives or employees, or resulting from the City's failure to perform its
obligations under this Agreement.
School Board Liability. Subject to the provisions and monetary limitations of Section
768.28, Florida Statutes (as may be amended), which limitations shall be applicable regardless of
whether such provisions would otherwise apply, and to the extent permitted by law, the School
Board shall not be liable for any damage or injury which may be sustained by the City, or any
person using the Property, other than damage or injury resulting from the negligence or improper
conduct of the School Board, its agents, representatives or employees, or resulting from the
School Board's failure to perform its obligations under this Agreement.
Section 25.3 Construction Insurance.
Board Initials 19 City Initials
Prior to the execution of this Agreement or the commencement of any construction work
on the Property, as applicable for the particular types of insurance, the City agrees to require the
Project Construction Manager to obtain and maintain at all times during the period from the
commencement of construction through Final Completion, as defined in the Contract for
Construction, the insurance coverage noted below, except for Builder's Risk insurance which is
to remain in effect through Substantial Completion. Copies of the certificate(s) of insurance
required for the execution of this Agreement shall be provided to the School Board prior to the
commencement of construction. Without limiting the City's right to review and amend its
insurance requirements hereunder in a manner consistent with other comparable construction
projects, the City agrees to cause to be maintained with respect to the construction of the Project
the insurance set forth in Exhibits "D-1" or "D-2" attached hereto and made a part hereof.
Section 25.4 Additional Insured.
All policies of insurance required by this Section shall indicate as additional insured the
Board, the City, and such other entity as may be required thereunder. Notwithstanding any such
inclusion, the Parties agree that any losses under such policies shall be payable, and all insurance
proceeds recovered thereunder shall be applied and disbursed, in accordance with the provisions
of this Section. All insurance policies shall provide that no material change, cancellation or
termination shall be effective until at least thirty (30) days after written notice to the additional
insured(s).
Section 25.5 Insurance Does Not Waive Parties' Obligations. No acceptance
or approval of any insurance hereunder shall relieve or release either Party from any liability,
duty or obligation under this Agreement.
Section 25.6 Notice of Loss. Whenever any part of the Project shall have been
damaged or destroyed by fire or other casualty, the City shall promptly cause the appropriate
insurance carriers to investigate and assess damages in accordance with the terms of the
applicable insurance policies and shall promptly prosecute all valid claims which may have arisen
against insurers or others based upon any such damage or destruction. The City shall promptly
give the Board written notice of any damage or destruction to the Project.
Section 25.7 Builder's Risk Insurance Proceeds.
(a) Authorized Payment. Upon commencement of construction, the Project
Construction Manager shall maintain, or cause to be maintained, Builder's Risk insurance in the
amounts and type set forth in Exhibits "D-1 " or "D-2".
Board Initials 20 City Initials
All sums payable for loss and damage arising out of the casualties covered by the
Builder's Risk insurance policies shall be payable to the City. Said proceeds shall be disbursed
pursuant to Subsection (b).
(b) Disposition of Insurance Proceeds for Reconstructing. Except as provided
herein with respect to disposition of insurance proceeds in the event of termination pursuant to
Section 25.10 of this Agreement, all insurance proceeds shall be used, to the extent required, for.
the reconstruction, repair or replacement of the Project, so that the Project shall be restored to a
condition comparable to the condition prior to the loss or damage (hereinafter referred to as the
"Reconstruction Work"). Any insurance proceeds remaining on deposit following the completion
of the Reconstruction Work shall remain with the City for deposit in a separate account to be used
in connection with reserves and replacements required for the Facility pursuant to the Lease and
Operating Agreement.
Section 25.8 Determination Regarding Commencement and Completion of
Reconstruction. The City will proceed to promptly cause the Project Construction Manager to
submit any claim for damage to the insurer in order for the Parties to determine if the
Reconstruction Work is practicable in accordance with the criteria set forth in Section 25.10. If
the Reconstruction Work is determined to be practicable, Reconstruction Work shall commence
no later than one hundred eighty (180) days after receipt of insurance proceeds, subject to Force
Majeure.
Section 25.9 Waiver of Subrogation Rights. Anything in this Agreement to the
contrary notwithstanding, the City and the Board each hereby waive any and all rights of
recovery, claim, action, or causes of action against the other, its agents, officers, directors,
partners, investors, or employees, for any liability, loss or damage that may occur in, on, about or
to the portion of the Property housing the Facility, the Facility, and/or any improvements from
time to time existing thereon, or to any portion or portions thereof, or to any personal property
brought thereon, by reason of fire, the elements or any other cause(s) which are insured against
under the terms of valid and collectible insurance policies carried for the benefit of the Party
entitled to make such claim, regardless of cause or origin, including negligence of another Party
hereto, its agents, officers, directors, partners, investors, or employees; provided that such waiver
does not limit in any way any Party's right to recovery under such insurance policies, and
provided further that the insurer pays such claims. The City and the Board shall each obtain
Board Initials 21 City Initials
waiver of subrogation endorsement as applicable to the excess casualty policy to effect the
provisions of this Section.
Section 25.10 Option to Terminate. If (a) the insurance proceeds received are
insufficient to complete the repairs as determined by the Parties, or (b) the City or the Board are
unable to obtain all of the governmental approvals required for the reconstruction of the Building,
then, in any of such events, either Party may elect to terminate this Agreement, and the Lease by
giving to the non -cancelling Party notice of such election within ninety (90) days after the
occurrence of the casualty. If such notice is given, the rights and obligations of the Parties under
this Agreement, and the Lease shall cease as of the date of such notice, except for the rights and
obligations that are intended to survive the termination of this Agreement. In the event of a
termination, the insurance proceeds shall be disbursed as follows:
(i) First toward the reduction of the unpaid amounts due to contractors and
consultants related to the construction work performed;
(ii) Second toward costs for debris removal; and
(iii) The balance of the proceeds, if any, shall be paid to the Parties as their
respective interests may then appear.
Section 26. No Liens. The Parties agree to do all things necessary to prevent
the filing of mechanics liens against the Facility, the Property or the interest of the City as owner
by reason of any construction, work, labor, services performed, or materials supplied on the
respective Party's behalf in relation to the Property. If any lien shall be filed as a result of an
action by a Party, the Party so responsible shall cause the same to be vacated of record within ten
(10) days after filing and shall provide the other Party with documentation in writing of such lien
vacation.
Section 27. Sale or Transfer of Interest in this Agreement: The School
Board shall not sell, assign, encumber or otherwise transfer its interests hereunder during the term
of this Agreement without the prior written consent and approval of the City Commission, and
any assignment without said prior written consent and approval of City Commission shall be
void. The City shall not sell, assign, encumber or otherwise transfer its interests hereunder during
the term of this Agreement without the prior written consent and approval of the School Board,
and any assignment without said prior written consent and approval of the School Board shall be
void.
Board Initials 22 City Initials
Section 28. Due Diligence and Related Termination Provisions. The City hereby
acknowledges that the School Board, in compliance with Florida Statutes and Board Rules, shall
conduct all required due diligence necessary to operate a public educational facility on the
Property. This due diligence includes, but is not necessarily limited to a determination of title
issues for the Portion of Property that would prevent the issuance of a Building Permit, an
updated Phase I Environmental Assessment, a Phase II Environmental Assessment
("Environmental Assessments"), and compatibility with Miami -Dade County aviation zoning
criteria, review of the site by DERM and the South Florida Water Management District, and
compliance with all applicable land use criteria. Such due diligence shall be completed as a
precondition of this Agreement, but in no event later than forty-five (45) days after receipt from
the City of an executed Agreement To Conduct Due Diligence Investigations. The costs of the
Phase II Environmental Assessment shall be paid fifty percent/fifty percent (50%/50%) by the
Parties. The City's share shall be paid in the form of a credit against the monies due from the
School Board for design costs. The Board agrees to provide to the City copies of all reports given
to the Board reflecting any adverse environmental conditions within five (5) days of the Board's
receipt of same.
If as a result of this due diligence review by the School Board, the School Board, in its
reasonable and sole discretion, determines that the Property is incompatible for the operation of
the High School, and the City is unwilling or unable to remediate those issues precluding the
operation of the High School on the Property, either Party shall have the right to terminate this
Agreement without payment of any additional fees or penalties whatsoever, including the Board's
proportionate share of Building design fees or the cost to allow the City to have sole use of the
Facility, by notifying the City in writing of same within thirty (30) days of completing the due
diligence. The School Board, its agents, employees and representatives shall have access to the
Property at all times with full right to conduct any and all inspections, investigations and tests
thereon, including, but not limited to, soil borings and hazardous waste studies, and to make such
other examinations with respect thereto as the School Board, its counsel, licensed engineers,
surveyors, or other representative may deem reasonably necessary ("Due Diligence
Investigations"). Any Due Diligence Investigations other than the Environmental Assessments
on the Property by the School Board shall be at the sole cost of the School Board and shall be
performed in a manner not to unreasonably interfere with City's ownership or use of the Property.
Other than as stipulated below, upon completion of any such Due Diligence Investigations, the
Board Initials 23 City Initials
School Board shall restore any damage to the Property caused by School Board's Due Diligence
Investigations. School Board hereby indemnifies and holds City harmless, to the extent of the
limitations of Section 768.28 Florida Statutes from all losses, costs or expenses, including, but
not limited to, reasonable attorneys' fees and court costs resulting from School Board's Due
Diligence Investigations in connection with the Property. Notwithstanding anything contained
herein to the contrary, School Board shall not indemnify or hold City harmless with respect to,
and School Board shall.not be required to, remove, remediate, dispose or otherwise deal with any
"Hazardous Substance", samplings derived from the Property containing Hazardous Substances
which it finds in connection with its Due Diligence Investigations of the Property.
Section 29. Default Remedies and Dispute Resolution. An event of default shall be
deemed to have occurred by either Party to this Agreement if such Party fails to observe or
perform any covenant, condition or agreement of this Agreement, and such failure continues for a
period of thirty (30) days after written notice specifying such default and requesting that it be
remedied is sent to the defaulting party by the non -defaulting party; provided, however, that if the
default is curable but cannot be cured within thirty (30) days, then the defaulting party shall have
such additional time as is reasonably needed to cure such default so long as the defaulting party
promptly commences and diligently pursues the cure of such default to completion. In the event
the default shall continue, then the Parties agree that the City Manager and the Superintendent of
Schools, or their designees, shall meet and attempt to cure the Default. If unable to be cured, the
non -defaulting party shall be entitled to all remedies available at law or in equity, which may
include, but not be limited to, the right to damages and/or specific performance.
In a similar fashion, in the event of any dispute, controversy or difference arising between
the Parties under this Agreement, including any issues as enumerated in Section 12.1, the parties
shall first attempt to resolve the matter between the City's Project Manager and the Board's
Project Manager. If unsuccessful, the City Manager and the Superintendent of Schools, or their
designees, shall meet in an attempt to resolve the issue. If the issue remains unresolved, one. Party
may then place the other in Default, as specified above.
Section 30. 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,
tornado, 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 this Agreement by reason of a
Force Majeure Event, the time for required completion of such act or obligation shall be extended
Board Initials 24 City Initials
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 best efforts to rectify any condition
causing such delay and shall cooperate with the other Party to overcome any delay that has
resulted.
Section 31. Entire Agreement. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements or understandings applicable to the
matters contained herein and the parties agree that there are no commitments, agreements, or
understandings concerning the subject matter of this Agreement that are not contained in this
document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated
upon any prior representations or agreements whether oral or written.
Section 32. Enforcement of Agreement. In the event that either Party is required to
enforce this Agreement by court proceedings or otherwise, then the Parties agree that each Party
shall be responsible for its own fees, expenses, and costs incurred, including reasonable attorneys'
fees, expenses, and costs of trial, alternative dispute resolutions, or appellate proceedings.
Section 33. Time of Essence. Time shall be of the essence for each and every
provision hereof.
Section 34. Captions. The captions contained in this Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit or prescribe the scope of
Agreement or the intent of any provisions thereof.
Section 35. Effective Date. This Agreement shall become effective upon the
execution by the City and the School Board and other conditions as set forth in the Agreement.
Section 36. No Third Party Beneficiary. This Agreement is solely for the benefit
of the School Board and the City and no right or cause of action shall accrue upon or by reason,
to or for the benefit of any third party not a formal party to this Agreement. Nothing in this
Agreement expressed or implied is intended or shall be construed to confer upon any person or
corporation other than the School Board and the City any right, remedy, or claim under or by
Board Initials 25 City Initials
reason of this Agreement or any of the provisions or conditions of this Agreement; and all of the
provisions, representations, covenants, and conditions contained in this Agreement shall inure to
the sole benefit of and shall be binding upon the School Board and the City, and their respective
representatives, successors, and assigns.
Section 37. Joint Defense. In the event that the validity of this Agreement is
challenged by a third party or Parties unrelated to the Parties through legal proceedings or
otherwise, the Parties hereto agree to cooperate with each other in defense of this Agreement,
with each such Party to bear its own attorney's fees and costs associated with such defense.
Section 38. Venue. This Agreement and the provisions contained herein shall be
construed, interpreted, and controlled according to the laws of the State of Florida. Governance
and venue for any dispute shall be in Miami -Dade County, Florida. 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.
Section 39. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be an original; however, all such
counterparts together shall constitute but one and the same instrument. Signature and
acknowledgments pages, if any, may be detached from the counterparts and attached to a single
copy of this document to physically form one document.
Section 40. Project close-out documents. The City shall require the Project
Architect/Engineer and Project Construction Manager to provide, and the City and School Board
shall each receive, duplicate copies of project close-out documents, including, but not necessarily
limited to, "as -built" drawings, operation manuals, building system certificates and warranty
information.
Section 41. Waiver of Jury Trial. In the event of any litigation between the Parties
under this Agreement, the Parties agree to waive a jury trial, and each party shall be responsible
for its own attorney's fees and court costs through trials and appellate levels. The provisions of
this paragraph shall survive the termination of this Agreement.
Section 42. Nondiscrimination. The School Board and City each represent and
warrants to the other that it does not and will not engage in discriminatory practices and that there
shall be no discrimination in connection with each Party's performance under this Agreement on
account of race, color, sex, religion, age, disability, marital status, sexual orientation, or national
Board Initials 26 City Initials
origin. The Parties further covenant that no otherwise qualified individual shall, solely by reason
of his/her race, color, sex, religion, age, disability, marital status, sexual orientation, or national
origin, be excluded from participation in, be denied services, or be subject to discrimination under
any provision of this Agreement.
Section 43. Public Records. The School Board and City each understand that the
public shall have access, at all reasonable times, to all documents and information pertaining to
this Agreement, subject to the provisions of Chapter 119, Florida Statutes and the specific
exemptions thereto, and each agrees to allow access by the public to all documents subject to
disclosure under applicable law.
Section 44. Award of Agreement. The School Board and City each represent and
warrant to the other that it has not employed or retained any person or company employed by the
City or Board to solicit or secure this Agreement and that it has not offered to pay, paid or agreed
to pay any person any fee, commission, percentage, brokerage fee, finders fee, or gift of any kind
contingent upon or in connection with, the award of this Agreement.
Section 45. Compliance with Federal, State, and Local Laws. The Parties
understand that agreements between school boards and local governments are subject to certain
laws and regulations, including laws pertaining to open public meetings, public records, conflicts
of interest, procurement procedures, record keeping, etc., and the School Board and the City
agree to comply with and to observe all applicable laws, codes and ordinances as they may be
amended from time to time.
The School Board further agrees to include in all of the School Board's agreements with
the Project Construction Manager, contractors and subcontractors for any goods and services
related to this Agreement this provision requiring each of them to comply with and observe all
applicable federal, state, and local laws rules, regulations, codes and ordinances, as they may be
amended from time to time.
Section 46. Appropriations Contingency. Both Parties acknowledge that funding for
this Agreement is contingent upon the availability of funds and continued authorization of the
Parties respective activities, and the Agreement is subject to amendment due to lack of funds,
reduction of funds, and/or change in regulations or other laws. This section shall have no effect
once the funds have been appropriated by both Parties and placed into the escrow account.
Section 47. City Not Liable for Delays. The School Board hereby understands
and agrees that in no event shall the City be liable for, or responsible to the School Board, its
employees, the Project Construction Manager, any contractor, any consultant, or any
subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or
Board Initials 27 City Initials
delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any
injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over
which the City has no control.
Section 48. Use of Name: The School Board understands and agrees that the City
is not engaged in research for advertising, sales promotion, or other publicity purposes. The
School Board is allowed, within the scope of normal and customary marketing and promotion of
its work, to use the name of the City in promoting and advertising the High School. Subject to the
provisions of Section 119, Florida Statutes, the School Board agrees to protect any confidential
information provided by the City and will not release information of a specific nature without
prior written consent of the City Manager or the City Commission.
Section 49. No Conflict of Interest. The Parties hereto agree that they will
each comply with respective State, County, local and School Board provisions regarding no
Conflict of Interest.
Section 50. Survival: All obligations (including but not limited to indemnity and
obligations to defend and hold harmless) and rights of any Party arising during or attributable to
the period prior to expiration or earlier termination of this Agreement shall survive such
expiration or earlier termination.
Section 51. Truth -In -Negotiation Certification, Representation and Warranty:
The School Board hereby certifies, represents and warrants to City that the Contract for
Construction shall comply with the Truth -In -Negotiations provisions of Florida Statutes.
Section 52. Authority of the Superintendent: The Superintendent of Schools or
his/her designee shall be the party designated by the School Board to grant or deny any and all
approvals required by this Agreement dealing with the design and construction of the Facility,
and in addition, the Superintendent of Schools or his/her designee shall be the party designated by
the School Board to terminate this Agreement in conformance with the provisions of the
Agreement.
Section 53. Authority of the City Manager. The City Manager or his/her
designee shall be the party designated by the City to grant or deny any and all approvals required
by this Agreement dealing with the design and construction of the Facility, and in addition, the
City Manager or his/her designee shall be the party designated by the City to terminate this
Agreement in conformance with the provisions of the Agreement.
The Resolution of the City Commission shall, in addition to approving this Agreement,
empower the City Manager to modify this Agreement in the event a modification to this
Agreement becomes necessary or desirable. Notwithstanding the above, any modification which
Board Initials 28 City Initials
increases the City's financial obligation shall require City Commission approval.
IN WITNESS WHEREOF, the Parties hereto have individually, through their proper
officials, made and executed this Agreement on this day of
2007.
THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA
BY:
DR. RUDOLPH F. CREW, SUPERINTENDENT
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
BY:
JULIE ANN RICO, ESQ.
SCHOOL BOARD ATTORNEY
CITY OF MIAMI, A FLORIDA MUNICIPAL CORPORATION
BY:
PEDRO G. HERNANDEZ, P.E.
CITY MANAGER
ATTEST: DATE:
PRISCILLA A. THOMPSON
CITY CLERK
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
BY: BY:
JORGE L. FERNANDEZ. LEEANN BREHM
CITY ATTORNEY RISK MANAGEMENT DIRECTOR
Board Initials 29 City Initials
EXHIBIT A
Legal description of the Portion of Property which will be used to house the High School and
College (the Facility)
Board Initials 30 City Initials
EXHIBIT "B"
INTERLOCAL OPERATING AGREEMENT
TERM SHEET
Terms of the Lease and Operating Agreement shall include, but are not limited to, the following:
Initial Term
Forty (40) years, commencing upon issuance of a Final Certificate of Occupancy
("Commencement Date") for the Facility.
Renewal Options
Four (4) ten-year options. The Board may exercise this option upon six (6) months prior written
notice from the Board to the City, provided the Board is not otherwise in default under the
Agreement and provided the Parties come to a mutual agreement regarding any capital
expenditures that may be required to continue the useful life of the Facility during the option
period(s).
Rent
$1.00/yr, in the total amount of $40 for the initial lease term, to be paid in advance prior to School
Board occupancy of the Facility. Rent during the option periods shall be $1.00/yr which shall be
paid in advance, and in full for the entire option period so exercised.
School Board Permitted Use
The School Board shall utilize the High School and any other spaces within the Facility
designated for joint use between the School Board and the City for the sole purpose of a
specialized instruction public high school, grades 9-12, for law studies, homeland security, and
forensic sciences.
City Permitted Use
The City shall utilize the College and any other spaces within the Facility designated for joint use
between the School Board and the City for the purpose of a law enforcement training facility.
Use Areas and Joint Use Facilities
The High School portion of the Facility used by the Board, and the College portion of the Facility
used by the City, as well as the portion of the Facility used as Joint Use Facilities, are as shown in
Exhibit "E", attached hereto.
Police Priority Use
During times of emergency, the City shall have priority use of all areas of the Facility. In such an
event, the Board's obligations under this Agreement, including any cost sharing provisions, shall
be reduced proportionately.
Joint Use Committee
A Joint Use Committee will be established as of the Commencement Date, and shall be made up
of one representative each from the School Board and the City. The School Board representative
shall be the principal of the School, or his/her designee ("School Administrator"), and the City
representative shall be the Chief of Police, or his/her designee. The Joint Use Committee shall be
responsible for coordination of all issues impacting the routine operations by the Parties within
the Facility, including establishing, monitoring, and modifying the schedule for the Joint Use
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Facilities ,and shall consider issues related to maintenance, utilities and other shared expenses
related to the Joint Use Facilities.
City's Building Services
City shall make available the following services to the Building, including without limitation the
Joint Use Facilities:
heating, ventilation and air conditioning during normal school operating hours
for the High School and Joint Use Facilities, and normal business hours for the
College and common use areas;
water and sewage facilities;
■ pest control;
• interior and exterior landscaping;
• exterior grounds maintenance and cleanup;
security as is required for the Building exterior and Joint Use Facilities;
electric current for normal use and light;
maintenance of life safety equipment;
locksmith service;
elevator service;
garbage removal from the Property.
City shall provide after-hours air conditioning services to the High School and Joint Use Facilities
upon written request of School Administrator to City (or its designee or agent) given not less than
forty-eight (48) hours prior to the date and time School Board requires such service.
City's Building Preventive Maintenance and Repairs
Other than the Board's maintenance responsibilities within the High School, City shall provide all
maintenance, including preventive maintenance, repairs and replacements, as necessary, to the
Building (inclusive of the Joint Use Facilities), including, but not limited to, the pavement,
driveways, pedestrian walkways, exterior doors and windows, lighting systems, plumbing
systems, heating and air conditioning systems, elevators, roof, structural systems, Closed Circuit
Television, electrical systems, life safety systems and lock and door security access systems.
School Board and City Provided Services
The City and School Board shall each be required to furnish and pay, at its sole expense, all
utilities or other such services not provided as a part of City's Building Services (including, but
not limited to, gas, telephone and cable television service, if available, and hook-up and
connection charges thereto) and other services which such Party requires with respect to its use of
the Building.
The School Board, at its sole cost and expense as it relates to the High School, and the City, at its
sole cost and expense as it relates to the College and the Joint Use Facilities, shall provide the
following routine maintenance services, without limitation:
• routine maintenance and repair of interior doors and windows, nonstructural interior
partitions, ceilings, floor coverings and wall decoration (e.g., carpeting, painting, wall
coverings, drapes and other window treatments, etc.), furniture, fixtures and equipment
therein, and all other routine maintenance and repair obligations and activities not
otherwise provided by the City under City 's Building Services and City's Building
Repairs;
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• janitorial and custodial services, including cleaning, sanitizing, stocking with supplies
and providing minor plumbing repairs to the bathrooms within all such areas and for
providing garbage removal to a dumpster designated by the City;
• replacement of all standard incandescent and florescent light bulbs, including ballast
replacement.
Shared Cost for City's Building Services, City's Building Repairs and other
Operating & Maintenance Expenses
The Joint Use Committee shall estimate the Building Operating & Maintenance Expenses no later
than April 30th of each year. The City shall provide and pay for all services itemized under City's
Building Services and City's Building Repairs, as set forth above, as well as all other Building
Operating & Maintenance Expenses. The Board shall reimburse the City 41 % of the combined
actual costs for same, in conformance with the following schedule. In the event either Party
utilizes portions of the Building a disproportionate amount of time, the Joint Use Committee shall
negotiate in good faith an adjustment to the percentages shared by the respective Parties.
Operating Period
Payment Due Date
Oct 1 — Dec 31
January 31
Jan 1 — Mar 31
April 30
Apr 1 — Jun 30
July 31
Jul 1 — Sep 30
October 30
For purposes of this Agreement, Building Operating & Maintenance Expenses shall mean any
and all costs and expenses paid or incurred by City, its representative or designee, in connection
with the operation, maintenance, management and repair of the Building and Portion of Property
housing the Facility. By way of illustration, but not limitation, these expenses shall include the
following: electricity, water, air conditioning, pest control, trash removal, maintenance, repairs
and supplies (except as specifically excluded in the section entitled "School Board and City
Provided Services"), elevator maintenance, insurance premiums paid by City for the Building and
(to the extent paid or required to be paid) deductibles; water, sewer and all other utility charges
(other than with respect to utilities separately metered and paid directly by either Party); janitorial
and all other cleaning services (except as specifically excluded in the section entitled "School
Board and City Provided Services "); taxes and special assessments (if not voluntarily entered
into by the City); refurbishing and repainting of common and/or joint use areas; heating and air
conditioning; lighting systems, fire detection and security services; landscape maintenance;
maintenance staff; road, sidewalk and driveway maintenance; fees for required licenses and
permits other than those required exclusively by one Party, fees, charges and other costs
necessary for the management, administration and operation of the Building, accounting services,
labor, supplies, materials and tools.
Capital Repair and Replacements
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The Joint Use Committee shall jointly prepare a capital repair and replacement plan, which plan
shall be updated annually. The Parties covenant and agree to fund each fiscal year their
respective share of the capital repairs and replacements scheduled for any given fiscal year. The
actual annual cost for conducting the capital repairs and replacements in any given year shall be
shared, with the City paying 59% of the cost and the School Board paying 41 % of the cost. The
School Board shall remit to the City its share of the actual cost of the capital improvements
("Capital Improvement Expense") within forty-five (45) days of receipt of an invoice from the
City, along with all substantiating documentation as may be reasonably required by the School
Board. Capital Improvement Expenses in excess of $100,000 may be invoiced by the City in
phases based upon completion of the work and actual amounts spent to -date.
Ownership of Improvements
The City shall continue to own in fee simple the Property, including the Building and all
improvements constructed thereon.
Insurance
In the event the City or Board allow a third party to use any portion of the Building, then said
third party shall be required to provide insurance as required by the City and School Board.
Each party shall be responsible for insuring its own personal property within the Building.
The City will procure property insurance for the Building as part of the City's master insurance
policy, in such amounts and with such deductibles agreeable to the Parties, which premium
attributable to the Building shall be part of Building Operating & Maintenance Expenses.
Notwithstanding the above, the City may, at its sole option if it is economically viable to do so,
procure a comprehensive commercial package insurance policy covering the Building and the
Building Property, as well as general liability insurance, in such amounts and with such
deductibles agreeable to the Parties, with the premium for same to be shared proportionately
between the Parties, 41%/59%, with the premium attributable to the Building being part of the
Building Operating and Maintenance Expenses. Such coverage shall include commercial general
liability and "All Risk" property insurance including coverage against loss or damage by fire,
windstorm, flood with such endorsement for extended coverage, vandalism, malicious mischief,
sprinkler leakage and special coverage, including flammable materials used for cooking, insuring
one hundred percent (100%) of the full replacement cost of the Building, the parties' alterations,
improvements, fixtures, equipment, FF&E (excluding free-standing FF&E within the facility),
and floor coverings, including the expense of the removal of debris as a result of damage by an
insured peril (collectively "Insured Property") on the Portion of Property, with the amounts of
coverage and deductibles to be agreed to by the parties respective Risk Management
Departments. The City and Board shall be named as Loss Payees and insureds. The parties may
mutually agree to self -insure as it relates to liability.
Damage and Destruction
In the event of Damage or Destruction of all or a portion of the Building, the City shall use
insurance proceeds to repair such damage to the Building to substantially the condition that
existed prior to the casualty. During such time that all or a portion of the Building is untenantable
or unfit for the purposes of the Board, all of the Board's obligations under the Agreement,
including the payment of Building O&M Expenses shall be reduced proportionately as it relates
to the services no longer being provided to its area as a result of the casualty, unless such damage
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is caused as a result of the negligence of the School Board, its agents, representatives or
employees, or resulting from the School Board's failure to perform its obligations under this
Agreement. The City shall not be liable for interruption to School Board's business or for
damage to or replacement or repair of School Board's personal property (including, without
limitation, inventory, trade fixtures, furniture and other property removable by the School Board)
or to any leasehold improvements installed by or on behalf of the School Board to the Building,
all of which damage, replacement or repair shall be promptly undertaken and completed by
School Board.
Subject to the provisions of this Section, the City covenants and agrees to promptly
submit any claim for damage to the insurer and to commence the reconstruction work as soon as
practicable (but in any event within one hundred eighty (180) days after the occurrence of the
casualty, subject to Force Majeure), and to fully complete such reconstruction work as
expeditiously as reasonably possible.
Notwithstanding the above, in the event there are insufficient proceeds to make the
repairs, the parties shall have ninety (90) days from the date the City notifies the Board that there
are insufficient insurance proceeds within which to: (1) terminate this agreement; (2) proceed in
making repairs which repairs may not result in the same being restored to its condition prior to
any such casualty; or (3) work cooperatively to identify and secure sufficient funds to restore
same (without imposing an obligation on either party to do so). The parties may, by mutual
agreement, extend the ninety (90) day period. If no decision is made within said ninety (90) day
period or such other mutually agreed to date, this Agreement will terminate at the end of such
period and the Parties shall each be released thereby from any further obligations hereunder
accruing after the effective date of such termination, except that such release shall not apply to
any sums accrued or due.
Insurance Proceeds
Except as provided herein with respect to disposition of insurance proceeds in the event
of termination of this Agreement, all insurance proceeds shall be used, to the extent required, for
the reconstruction, repair or replacement of the Project, so that the Project shall be restored to a
condition comparable to the condition prior to the loss or damage (hereinafter referred to as the
"Reconstruction Work"). Any funds remaining on deposit following the completion of the
Reconstruction Work shall remain with the City for deposit in a separate account to be used in
connection with reserves and replacements required for the Facility.
In the event of a termination of the Lease and Operating Agreement as a result of a
casualty, the City shall disburse and apply any insurance proceeds received by the City shall be
payable as follows:
• First, to the City to raze the Building and other improvements on the Property
and clear the site; and
• Next, to City and School Board in proportion to the unamortized portion of their
respective construction and capital contributions, assuming amortization of each
such contribution on a straight-line basis over thirty (30) years.
• The balance, if any, to the City.
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Jessica Lunsford Act compliance
The parties acknowledge the requirements of Sections 1012.32, 1012.465, and 435.04, Florida
Statutes (2004) as well as with the requirements of HB 1877, The Jessica Lunsford Act (2005),
effective September 1, 2005, as it may from time to time be amended. In recognition of same, the
City will not conduct any repairs nor provide any services within the High School or the Joint
Use Facilities during hours in which the School Board is utilizing these facilities. In the event it
becomes necessary to provide such services or repair during the School Board's use, the City will
provide a police officer to escort and remain present during the time any worker is required to be
in said areas. The City shall not incur any cost, other than the presence of a police officer as
referenced above, in order to comply with the requirements of The Jessica Lunsford Act.
Interior Improvements
The Board shall have the right at all times to construct non-structural interior improvements
within the High School, without the prior approval of the City, provided all such work is done in
compliance with all applicable codes, rules and regulations, and the installation of such work will
not negatively impact the weight bearing capacity of the floor, or the building's electrical/air
conditioning consumption or otherwise create an operational cost impact that has not already
been contemplated in the Construction Documents. In the event the City advises that the Board's
proposed interior improvements will create such a negative impact, then the Board shall supply
documentation as may reasonably be necessary to resolve the issue. In the event it is determined
that the proposed interior improvements will create such a negative impact, then the City may
disapprove such interior improvement unless the Board assumes the cost of such changes
required to the Facility to accommodate the negative impact and/or the additional operational cost
impact caused by the installation of such interior improvement.
Joint Use Facilities
The Parties shall develop and agree to a workable schedule incorporating the use by both Parties
of the Joint Use Facilities. Said schedule shall incorporate, at a minimum, the following:
- normal hours of use by the High School;
- normal hours of use by the College;
- use by each Party during other than their normal period of use.
Default Remedies and Dispute Resolution
Defaults under the Lease shall include, inter alia, failure by the School Board to obtain the City's
prior written approval by City Commission Resolution for any transfer of the leased premises to a
third party, or failure by the School Board to reimburse the City for any expenses due to the City
by the Board. An event of default shall be deemed to have occurred by either Party if such Party
fails to observe or perform any covenant, condition or agreement of this Agreement, and such
failure continues for a period of thirty (30) days after written notice specifying such default and
requesting that it be remedied is sent to the defaulting party by the non -defaulting party; provided,
however, that if the default is curable but cannot be cured within thirty (30) days, then the
defaulting party shall have such additional time as is reasonably needed to cure such default so
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long as the defaulting party promptly commences and diligently pursues the cure of such default
to completion. In the event the default shall continue, then the Parties agree that the City's City
Manager and the Superintendent of Schools, or their designees, shall meet and attempt to cure the
Default. If unable to be cured, the non -defaulting party shall be entitled to all remedies available
at law or in equity, which may include, but not be limited to, the right to damages and/or specific
performance.
In a similar fashion, in the event of any dispute, controversy or difference arising between
the Parties under this Agreement, the parties shall first attempt to resolve the matter between the
City's Chief of Police and the High School Principal, or their designees. If unsuccessful, the City
Manager and the Superintendent of Schools, or their designees shall meet in an attempt to resolve
the issue. If the issue remains unresolved, one Party may then place the other in Default, as
specified above.
Use of Name
The School Board is allowed, within the scope of normal and customary marketing and
promotion of its work, to use the name of the City in promoting and advertising the High School.
Authority of Superintendent
The Superintendent of Schools or his/her designee shall be the party designated by the School
Board to grant or deny any and all approvals required by this Agreement, and shall be the party
designated by the School Board to terminate this Agreement in conformance with the provisions
of the Agreement.
Authority of City Manager
The City Manager or his/her designee shall be the party designated by the City to grant or deny
any and all approvals required by this Agreement, and shall be the party designated by the City to
terminate this Agreement in conformance with the provisions of the Agreement.
Parking
The City shall provide fifteen (15) parking spaces within the Police Department Garage for High
School staff use during normal school hours, subject to meeting applicable indemnifications and
security requirements as may be imposed by the City.
No Conflict of Interest.
The Parties hereto agree that they will each comply with their respective State, County, local and
School Board provisions regarding no Conflict of Interest.
Eminent Domain
In the event that all of the Portion of Property (or such portion thereof as shall render it
economically unfeasible to effect restoration thereof for its intended purpose) shall be taken for
any public use or purpose by the right or the exercise of the power of eminent domain, or shall be
conveyed by the City and School Board, the Rent and money due to the City by the School Board
pursuant to the Lease shall be prorated and paid by the School Board to the Date of Taking or
conveyance in lieu thereof, and this Lease shall terminate and become null and void as of the
Date of Taking or such conveyance. Each Party shall each be paid the amount of damages
allocable to and represented by the value of their respective interest in the Building and the
Portion of Property. In no event shall School Board be entitled to compensation for any fee
ownership interest in the Property at the time of condemnation.
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In the event that less than all of the Portion of Property shall be taken for any public use or
purpose by the right or the exercise of the power of eminent domain, or shall be conveyed by the
City and School Board acting jointly to avoid proceedings of such taking, then the Lease and all
the covenants, conditions and provisions therein shall be and remain in full force and effect as to
all of the Portion of Property not so taken or conveyed. The City shall to the extent there are
sufficient proceeds from the condemnation award, remodel, repair and restore the Building so that
it will be comparable to the Building prior to the condemnation, taking into consideration the fact
of the condemnation; provided, however, that in so doing, the City shall not be required to expend
more than the amount of any condemnation award actually received. The City shall be paid the
value of the portion of the land so taken, which land shall be valued as if unencumbered. The
City and School Board shall be paid the balance of the condemnation award, if any, which are
allocable to and represented by the value of their respective interest in the Building and the
Portion of Property.
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