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HomeMy WebLinkAboutExhibitPROJECT COOPERATION AGREEMENT Between the City of Miami and the Orange Bowl Committee For Construction of a Youth Football Stadium THIS AGREEMENT (the "Agreement") is made and entered into as of this _ day of , 2008, by and between OBC MOORE PARK, LLC, a Florida non-profit limited liability company, the sole member of which is the Orange Bowl Committee, Inc. (hereinafter referred to as "OBC"), with its principal office located at 14360 SW 77 Court, Miami, Florida, and the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as "City"), with offices at 444 S.W. 2" Avenue, Miami, Florida. RECITALS: A. The City is the fee simple owner of certain real property located at 765 N.W. 36th Street known as Moore Park, a municipal park of the City, (the "Property") on which the OBC is constructing a youth sports facility containing a football stadium, a new field surface, a new running track with facilities for track and field events, 1,500 aluminum bleacher seats, field lighting, and storage structure and a two (2) restroom/concession building (the "Project"), which development is, among other things, in furtherance of the City's goal of improving the inner city area and enriching the lives of its residents by providing athletic facilities open to the general public. B. The City, pursuant to Resolution No. R-08-01205 adopted October 23, 2008, (the "Enabling Resolution") a copy of which is attached hereto and made a part hereof as Composite Exhibit A, which Resolution is deemed as being incorporated by reference herein as though set forth in full, supports the development of a youth football stadium as depicted in the Moore Park Improvements Plan (the "Project") prepared by the OBC. The City, pursuant to Resolution No. R-08- adopted November 13, 2008, a copy of which is attached hereto and made a part hereof as Composite Exhibit A, has acknowledged that OBC will direct and manage all CCNA professional services and construction work for the Orange Bowl Legacy Gift within the Property. C. The Project serves a public purpose and is in the best interests of the City in that it will beautify the area, enhance community activity and create an asset for the people of Miami that will last generations, all enhancing the quality of life in the City of Miami. The Project is to be located on Moore Park, which is owned by the City, which will . remain open, accessible and available for the recreation, use and enjoyment of the public in general and will serve the municipal and public purposes set forth herein. 1 D. The OBC desires to assist the City by constructing the Project, provided that the City assists with funding of its direct cost of construction, subject to the terms, conditions, and reservations of this Agreement. E. In consideration of this offer, the City adopted the Enabling Resolution authorizing the City Manager to enter into this Agreement to assist with the design and funding for the construction of the Project by providing matching funds in an amount not to exceed Two Million Five Hundred Thousand and No/100 Dollars ($2,500,000) (the "Funding Amount") pursuant to the terms, conditions, and reservations contained herein. F. The City has determined that the construction of the Project will promote community activity to the citizens of the City by providing, among other things, a new field surface, a new running track with facilities for track and field events, 1,500 aluminum bleacher seats, field lighting, and storage structure and a 2 restroom / concession building. The foregoing items shall all be considered Project improvements. G. The City has determined that construction of this Project will primarily benefit the general public because such structure will be owned by the City and used by the general public as a municipal park. NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. The OBC and the City hereby agree that the foregoing recitals are true and correct and further agree as follows: (1) Incorporation by Reference. The recitals set forth in the preamble to this Agreement are incorporated by reference as though set forth in full herein and made a part hereof. (2) Naming of Project. In consideration of the funds committed by the OBC and other undertakings by the OBC hereunder, the City has agreed on behalf of itself and its successors and assigns that the Project shall be named and designated as the "Orange Bowl Field at Moore Park." (3) Ownership of Improvements. The parties agree that the City shall remain the fee simple owner of the Property, and shall become the owner of all other improvements related, incidental or allied to the Project after the completion of design construction by the OBC and upon acceptance of the Project by the City, which shall be defined as the receipt and approval of "as built" drawings, receipt of all warranties in the name of the City of Miami, and final release of all subcontractor and supplier liens by the Director of the Capital Improvements Department (the "CIP Director") or the City's Chief Financial Officer ("CFO"). At the conclusion of the construction of the Project, the OBC shall tender a bill of sale absolutely conveying title of the Project and all other Project improvements to the City, free and clear of liens and encumbrances 2 created by, through or under the OBC related to the Project and improvements, and said Project shall be subsequently maintained by the City in a reasonable manner for the recreation, use and enjoyment by the public and shall be retained by City or any other successor municipal public agency responsible to maintain it. (4) Funding. The OBC will contribute funds in an amount not less than Two Million Five Hundred Thousand Dollars ($2,500,000) ("OBC Contribution"). The parties' respective contributions will each be substantiated by the Capital Improvement Program Office (hereinafter referred to as "CIP") for the construction of the Project and related Project improvements. The City shall provide matching funds in an amount not to exceed Two Million Five Hundred Thousand Dollars ($2,500,000) (the "Funding Amount") for the construction of the Project, provided the City shall have no obligation to fund any amounts in excess of the Funding Amount. For the purposes of this Agreement, (the "Total Allocation") shall mean the sum total by the City of the Funding Amount and the OBC contribution, or the sum total of Five Million Dollars ($5,000,000). The City will make an initial matching contribution of One Hundred Thousand Dollars ($100,000), which is part of the Funding Amount, following the execution of this Agreement. An account shall be established by the OBC with a mutually acceptable bank in which all funds required to be remitted hereunder shall be deposited (the "Project Account"). The City Funding Amount will be distributed by City check or warrant payable to the OBC, subject to the written approval of the CFO, or CIP Director, from time to time, throughout the construction of the Project. The Parties agree that the OBC Contribution and the City's Funding Amount will be distributed on an equal Fifty/Fifty percent (50/50%) basis, so that at all times until the Total Allocation is expended, the Parties share the funding distributions. In addition, it is acknowledged and agreed that the actual budgeted amount for the Project is $5,650,000 (the "Budgeted Amount"). The OBC has agreed to seek to fund the additional $650,000.00 needed for constructionof the Project through fundraising and sponsorships. The City acknowledges and agrees that such donors may request signage or similar sponsorship benefits within the Project in connection therewith and the City shall not unreasonably withhold, delay or condition their approval to such donor sponsorship or similar donor sponsorship benefits within the Project: The City Commission hereby approves commemorative donor signage for the Project including, but not limited to, the press box, scoreboard, two (2) concession buildings and commemorative plaques to be located within the Project. This shall not include billboards, free standing signs, or murals which are not allowed in the Project. All signage and commemorative donor signage will comply with all applicable City laws. In return, the OBC hereby agrees that, in addition to its contribution of Two Million Five Hundred Dollars($2,500,000), it shall also be responsible for all costs of completing construction of the Project that exceed the Total Allocation, including, without limitation, cost overruns, extra or unanticipated costs and the like, costs or fees attributable to change orders, delays, claims by subcontractors, suppliers, laborers or materials suppliers, provided that, if due to unforeseen conditions or occurrences, the OBC reasonably estimates that the Budgeted Amount shall be exceeded by more than ten percent (10%), then the parties shall meet in good faith to determine how to proceed. In the event that the parties are not able to mutually agree upon a resolution thereof, then either the OBC or the City shall have the right to terminate this Agreement without 3 liability. Any City funds not expended by OBC shall be returned to the City in the event of a cancellation under this section. Further, if the cost of completion of the Project is less than the Total Allocation, then fifty percent (50%) of such savings shall accrue to the City and fifty percent (50%) shall accrue to the OBC. For purposes of this Agreement, costs relating to the construction of the Project shall be defined to mean and include, without limitation, any and all labor, materials, supplies, equipment, supervisory personnel, and insurance and bonding required herein for the construction of the Project (the "Construction Costs"). For purposes of this Agreement, Construction Costs relating to the Project shall also include fees and costs for registered and licensed engineers, architects, landscape architects, surveyors, contractors, subcontractors, materialmen, environmental testing or environmental consultants, mapping, and other design professionals, but not for lobbyists, legal or tax, environmental or regulatory legal counsel, brokers and salespersons, sponsors, supporters, auditors, accountants or any other Professional Services not expressly enumerated in the Consultant's Competitive Negotiation Act ("CCNA"), § 287.055, Fla. Stat. (2008). There shall be no mark up by the OBC on Construction Costs or related costs, that is, only the actual, direct cost incurred by the OBC may be billed to the City pursuant to this Agreement. Notwithstanding anything to the contrary contained herein, purchase and construction of the Project are undertaken on behalf of the City and the City shall, upon completion and acceptance, be the fee simple owner of the Project and all related Project improvements. (5) Construction Plans. The OBC has previously agreed to the development of the Project substantially in accordance with the Schematic Design and Contemplated . Scope of Improvements as further described in the attached Exhibit B, as the same may be modified by mutual written agreement between the City Manager and the OBC (as the same may be amended, the "Contemplated Scope"). Based on the Schematic Design and Contemplated Scope, the OBC shall arrange to provide Construction Plans and documents that additionally comply with the Florida Building Code, the City of Miami Charter, City Code and Zoning Ordinance, and any other applicable laws and City Urban Design Standards and Guidelines, the City, acting by and through the City Manager shall review and approve all subsequent design documents pertaining to the Project at Moore Park. Throughout the design process, the OBC shall use its commercially reasonable efforts to ensure that the Project can be built within the Budgeted Amount, and shall, if mutually approved by the OBC and the City Manager at his sole discretion, make periodic adjustments to the Contemplated Scope as necessary. OBC hereby further agrees to provide final detailed construction plans, specifications and related documents (the "Construction Documents") pertaining to the Project in a manner consistent with the Schematic Design and Contemplated Scope. The Construction Documents shall include all design, engineering and consultants' plans needed for completion of the Project. The OBC will consult periodically during the completion of Construction Documents, and the OBC will duly consider the input of the City Manager. All decisions with regard to modifications of the progress Construction Documents shall rest with the OBC. (6) Final Construction Documents Review and Options. The final Construction Documents shall be forwarded to the OBC and the City Manager for their respective review and approval as to consistency with the Schematic Design and Contemplated Scope, and said 4 approvals shall not be unreasonably withheld, conditioned or delayed. In the event the City Manager fails to comment on such documents in writing within twenty (20) days of their transmittal to him, the Construction Documents will be deemed approved without the necessity of further action. The design documents will be forwarded upon completion of the following: • Design development • 30% Construction Documents • 60% Construction Documents • 90% Construction Documents • 100% Construction Documents The OBC shall confirm, as evidenced by one or more construction bids from reputable construction general contractors, that the Project as depicted in the Construction Documents can be constructed within the Budgeted Amount. Such evidence shall be presented to the City Manager within the twenty (20) day Construction Document review period. The OBC shall have full rights to approve, reject, negotiate or otherwise take any action or decision they deem appropriate as to any and all bids prior to acceptance by the OBC. In the event that all of the construction bid(s) exceed the Budgeted Amount, then the OBC may: a) seek additional bids from additional contractors that are reasonably acceptable to the City Manager, b)approve non- material or non -substantial changes in the scope of work and/or Construction Documents that will reduce the Construction Cost to the Budgeted Amount, c) seek additional donor funds, or d) Promptly decline to implement construction of the Project, without penalty to either party, excepting that any City funds received will promptly refunded to the City. In the event that option (b) hereinabove is considered, there shall be no modification in scope that negatively impacts or reduces the standards of quality or aesthetics incorporated into the original Schematic Plan. (7) Construction Schedule. OBC shall submit to the City CIP Director a critical path construction schedule from the Construction Contractor within fourteen (14) calendar days of the Notice of Award being issued to the Construction. Contractor. The construction schedule submittal shall be subject to review and comment by the City CIP Director . Subsequent to such review of said schedule the accepted schedule will serve as the baseline schedule for the Project. An update schedule, which will track the Project against the baseline schedule, will be submitted with each construction draw request as detailed in (8) below. The City CIP Director will not approve a draw request without submittal of an updated schedule. Subsequent schedule submittals to the city if for project tracking purposes only. Project schedules should be prepared by the Construction Contractor in Microsoft Project or similar software. (8) Construction and Draw Requests. The OBC shall be responsible for the construction of the Project substantially in accordance with the approved Construction Documents approved by the OBC and the City Manager. The OBC shall substantiate its expenditures of the OBC's Contribution for the Project. The OBC shall submit a detailed monthly invoice, which complies with Florida's Prompt 5 Payment Act, §2 18.70, Fla. Stat. (2008) to the City CFO for all costs relating to the construction of the Project performed during the preceding month, along with reasonable substantiating documentation as requested by the City CFO or CIP Director . Provided the work has been performed, the City shall make payment in an amount equal to fifty percent (50%) of the invoice submitted in accordance with Section 4 hereof. If the City disputes any invoice, it shall advise the OBC no later than thirty (30) days after receipt of any invoice. The parties agree to thereafter promptly meet in good faith to resolve any such dispute, provided that, pending resolution, the parties shall continue funding the undisputed amount in accordance with Section 4 hereof. The Parties agree that the OBC Contribution and the City's Funding Amount for construction draw requests will be distributed on an equal Fifty/Fifty percent (50/50%) basis, so that at all times until the Total Allocation is expended, the Parties share the funding distributions. The City has taken all lawful measures to waive public procurement in accordance with applicable laws so that (i) the OBC shall not be subject to the public procurement bidding and procedure laws otherwise applicable to the City for the Project; and (ii) the Park has all appropriate zoning necessary for the Project. The City further covenants and agrees that it will actively assist and cooperate with the OBC throughout the construction process, including, without limitation, providing assistance on permitting and access to relevant public documents with respect to the Property. (9) Insurance and Bonding; Indemnity and Hold Harmless. (a) Insurance and Bonding: Prior to commencing the construction of the Project, The OBC shall provide the City's Risk Management Administrator with evidence, consisting of certificates of insurance and bonds issued by Florida insurers and/or sureties rated A:V or better per A.M. Best's Key Rating Guide, latest edition. The general contractor and OBC must carry and maintain throughout the project and at least until final completion and acceptance of the work, all lines of coverage as depicted in Exhibit Cl and Exhibit C2 "Insurance Requirements" respectively contained herein; including Payment and Performance Bond to be provided by the general contractor in substantially the form prescribed for a public construction bond by Section 255.05, Fla. Stat. (2008), guaranteeing performance of this Agreement and payment of all subcontractors, material persons, and suppliers in the Budgeted Amount as set forth herein or in an amount equivalent to the Construction Cost of the Stadium, whichever amount is greater. As municipal property cannot be encumbered or liened under Florida Law the payment and performance bond must be equal to the construction bid amount. All insurance policies shall be on an "occurrence" basis. The City of Miami and the OBC must be named as an additional insured and obligee on the payment and performance bond. The amount of insurance coverage required from the general contractor and OBC will not be less than the amounts set forth in Exhibit Cl and Exhibit C2 "Insurance Requirements," respectively attached hereto and made a part hereof. The OBC shall furnish to the City's Risk Management Administrator, certificates of insurance and/or insurance policies for the coverage required hereunder and the required payment performance bond for the City Risk Management Administrator to review, comment and approve at least thirty (30) days prior to commencement of construction of Project funded 6 by the City and the OBC. All such policies shall be endorsed to provide that the City and the OBC shall be given at least 30 days prior written notice of any cancellation, lapse, or material modification of said insurance coverage and/or bond. (b) Indemnification The OBC, its successors and assigns shall indemnify, defend and hold harmless the. City of Miami, and all of its Boards or Agencies, whether sui juris or not, and their respective officers and employees in any and all actions, claims, demands, costs, expenses, liabilities or damages arising or accruing by virtue of acts or omissions of the OBC, its officers, directors, employees, successors and assigns. This hold harmless, indemnity and covenant not to sue the City of Miami, and all of its Boards or Agencies, whether sui juris or not, and their respective officers and employees, includes, without limitation, any and all claims for personal injury, wrongful death, damage to or loss of property, or violation of applicable laws. The duty to defend may be complied with, at the option of the City Attorney, by either paying reasonable attorney's fees for the cost incurred by the City in its defense, or by selecting defense counsel, acceptable to the City Attorney, the cost of which shall be borne by the OBC. The obligations under this section shall survive the expiration or cancellation of this Agreement and shall be construed to comply with §725.06 and/or Section 725.08 Florida Statutes (2008). The OBC covenants to provide in each of its contracts with the general contractor and the architectural firms that the City shall be indemnified in connection to this Agreement. In the event any person or entity not a party to this Agreement brings a third party action demand, claim or suit against the City of Miami, and all of its Boards or Agencies, whether sui juris or not, and their respective officers and employees, as a result of this Agreement, the City shall give written notice to such effect to the OBC upon becoming aware thereof, including with such notice all correspondence and documents in the possession of the City or its agents relating thereto. In such event, within five (5) days after written notice to the OBC (the "Notice") of such demand, claim or lawsuit, or if no such Notice is given, within five (5) days of becoming aware thereof, the OBC shall have the right, at its sole cost and expense, to retain counsel to defend such action (which counsel shall be satisfactory to the City Attorney), to defend any such demand, claim or lawsuit. (10) Compliance with Laws. The OBC and it's. general contractor shall at all times comply with all applicable municipal, state and federal laws, ordinances, codes, statutes, rules and regulations, approved development orders, if any, and City of Miami Guidelines governing the design and construction of the Stadium and the granting of Funds for use thereof. (11) Miscellaneous. (a) Enforcement. The provisions of this Agreement may be enforced by all appropriate actions in law and in equity by any party to this Agreement, or fee simple owners of the Property. In order to expedite the conclusion of the actions brought pursuant to this Agreement, the parties, their successors and assigns will. not demand jury trial nor file permissive counterclaims outside the bounds of this Agreement in such actions. Each party shall bear their own respective attorney's fees. A court of competent jurisdiction may award costs to a prevailing party. 7 (b) Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which when taken together shall be deemed to be one and the same instrument. (c) City Officials. The "City" is a municipal corporation and the City Manager as it's Chief Administrative Officer, is empowered to make all decisions with regard to this Agreement on behalf of the City, unless otherwise provided by law or by resolution of the City Commission. The City Manager may delegate any City action under this Agreement to the CFO or the CIP Director or another City designee communicated in writing to OBC under section 11(f). (d) Successors and Assigns. This Agreement may not be assigned, sold, pledged, hypothecated or encumbered, in whole or in part, or an institutional lender providing construction funding for development of the Development, without the prior approval of the Miami City Commission. The City is relying on the commitment, skill and reputation of the OBC in engaging professionals to perform this work and may withhold or cancel funding in the event there is any assignment, pledge, sale or other disposition by the OBC without having first secured the approval of the City Manager or his designee, which may be unreasonably withheld or delayed. (e) Construction of Agreement. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation hereof. All of the parties to this Agreement have participated fully in the negotiation of this Agreement, and accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. In construing this Agreement, the singular. shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. (0 Notices. Any and all notices required or desired to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand (including recognized overnight courier services, such as Federal Express) or three (3) business days after deposit in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to the recipient at the address for such party set forth in the introductory paragraph to this Agreement (or to such other address as any party hereunder shall hereafter specify to the other in writing). City of Miami: Pedro G. Hernandez, City Manager and Larry Spring, Chief Financial Officer 444 S.W. 2nd Avenue, loth Floor Miami, FL 33130 Orange Bowl Committee: With a copy to: Julie O. Bru, City Attorney 444 S.W. 2nd Ave, Suite 945 Miami, FL 33130 With a copy to: 8 OBC Moore Park, LLC: Eric Poms, CEO 14360 N.W. 77th Court Miami Lakes, FL 33016 Hunton & Williams, LLC Attention: Abigail C. Watts-FitzGerald, Esq. 1111 Brickell Avenue, Suite 2500 Miami, Florida 33131 (g) Severability. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed in full force and effect. (h) Exhibits. All of the Exhibits attached to this Agreement are incorporated herein and made a part of this Agreement. (i) Amendments. This Agreement may not be amended or modified except by written Agreement of the parties hereto. Further, no modification or amendment, by the City under Section (11) herein, shall be effective unless in writing and executed by the parties, employing the same formalities as were used in the execution of this Agreement. (j) Limitation of Damages. Irrespective of the terms contained herein, neither party will be liable to the other party for any consequential, special, or exemplary damages arising out of or related to this Agreement. (12) Default. a) Termination for Cause. In the event of a default, which is not cured within the time periods se forth herein, the parties shall have all rights and remedies provided by law or equity. b) This Agreement and/or the City's funding obligations under the Agreement may be terminated, for cause, at the option of and by the City Manager, if any material default is not cured by the OBC or the OBC does not comply with any material terms, covenants or condition provided herein within thirty (30) days from the date of a written notice from the City Manager describing in reasonable detail such default or failure to comply, provided that, if such default or failure to comply reasonably requires a greater period of time to cure, than such 30-day period shall be extended provided that the OBC promptly commences to cure and prosecute with all due diligence and completes such cure within one hundred and eighty days (180); or when, in the opinion of the City Commission, termination is necessary to protect the interests of public health, safety or general welfare. This subsection shall not apply during any period of Force Majeure extension pursuant to Section (15). c) Termination for cause may include, without limitation, any of the following: i) The OBC's general contractor fails to obtain or maintain in place during the Project the insurance or bonding herein required, which is not cured within 30 days of written notice thereof. 9 ii) A mechanics, laborers or similar lien is placed upon the Property or Project or other City owned property due to actions of the OBC and/or its general contractor, and is not contested, bonded, or discharged by the OBC within thirty (30) days of its recordation. iii) The OBC and /or its' general contractor fails to comply with any of its material duties under this Agreement, including without limitation timely completion of the Project, as described below, within thirty (30) days from the date of a written notice from the City Manager describing in reasonable detail such default or failure to comply, provided that, if such default or failure to comply reasonably requires a greater period of time to cure, than such 30-day period shall be extended provided that the OBC promptly commences to cure and prosecute with all due diligence and fully completes such cure within one hundred and eighty (180) days. iv) The OBC assigns, sells, or encumbers this Agreement or any interest therein, without securing the prior approval of the City Commission which may be unreasonably withheld as this Agreement is personal to the OBC and the City is relying on the unique characteristics and attributes of the OBC and would not enter into this Agreement but for their involvement and undertakings v) The OBC and/or its general contractor fail to complete the Stadium in a timely manner as required by this Agreement and substantially in accordance with the Construction Documents. vi) The OBC shall have no recourse from a termination made by the City in accordance with this Section except to retain the funds already disbursed in full and final settlement of any claim, action, demand, cost, charge or entitlement it may have, or will have against the City, its officials or employees. (12) Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, both oral and written, between the parties with respect thereto. (13) Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Florida. Venue for all actions under this Agreement shall be in Miami -Dade County, Florida. (14) No Joint Venture Or Third -Party Beneficiaries. The Orange Bowl Committee is an independent contractor and is not an agent, joint venture, partner or affiliate of the City, nor can the City be bound to honor any obligation or duty of the Committee, except as expressly provided herein. (15) Time is of the Essence. Time is of the essence in the performance of all duties and responsibilities under this Agreement. Subject to force majeure (as hereinafter defined), the City is relying on the OBC to complete the Project within fifteen months after receipt by the OBC of 10 all applicable permits and commencement of construction. Excepting force majeure if the OBC fails to complete and deliver this Project within such time so that the Project is able to be used by the public and has all permits and certificates required by law it shall be just cause for the City Manager to suspend any City funding amounts until the Project is completed in accordance with all laws, unless the City cancels this Agreement for such cause in accordance with § 11 herein in which case the parties will have such rights and remedies as are provided by Florida law. For purposes of this Agreement, `force majeure" means any action of any governmental or quasi -governmental entity (whether or not the action(s), regulations(s), order(s) or request(s) prove(s) to be invalid), equipment failure, threatened terrorist acts, terrorist acts, act of public enemy, earthquake, war (declared or undeclared), fire, flood, epidemic, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow -down, civil disturbance, insurrection, riot, or any other similar or dissimilar cause beyond the reasonable control of the OBC or its general contractor. Neither the City nor the OBC intends to directly or substantially benefit a third -party by this Agreement. This section does not apply to the general contractor selected, supervised, and directed by the OBC to perform the work and undertake and complete this Project. Therefore, the parties agree there are no third party beneficiaries to this Agreement and that no third -party shall be entitled to assert a claim against either of them based upon this Agreement. (16) No Discrimination. The OBC represents and warrants that there shall be no unlawful discrimination as provided by federal, state or local law, in connection with its performance under this Agreement. (17) Authority of the Committee's Signatories. The undersigned executing this Agreement on behalf of the OBC has authority of record pursuant to the attached Limited Liability Company Resolution, and all applicable laws of the State of Florida to act on behalf of and bind the OBC to every condition, covenant and duty set forth herein. (18) Audit Rights. Pursuant to the applicable provisions of § 18-100 to § 18-102 of the Code of the City of Miami, which are deemed as being incorporated by reference herein, the City may at its cost and expense audit the OBC's records relating to this Agreement, during regular business hours, at a location within the City of Miami during the term of this Agreement and for three (3) years thereafter and in a manner so as to not unreasonably interfere with its business operations. OBC shall maintain adequate records to justify all charges and expenses, reimbursable costs, and fees incurred in performing any work or Project under this Agreement for at least three (3) years after Project Completion. (19) Joint Effort. Preparation of this Agreement has been a joint effort of the parties and the resulting document shall not, solely as a matter of interpretation or judicial construction, be construed more severely against one of the parties more than any other. 11 (20) Ownership of Project and Documents. The Project and all related, incidental, allied and other Project improvements made at Moore Park by virtue of this Agreement and all design, construction and other Project reports, tracings, drawings, plans, specifications, surveys, maps, computer data or media and other documents or data developed for this Project shall become automatically the property of the City without restriction, pledge, limitation or encumbrance. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. Attest: OBC MOORE PARK, LLC By By LLC Secretary S. Daniel Ponce (Affix LLC Seal) Chairman of OBC Moore Park Attested to by: CITY OF MIAMI By Priscilla A. Thompson, City Clerk (Affix City Seal) Approved as to Legal Form: By Pedro G. Hernandez, City Manager Approved as to Insurance Requirements: Julie O. Bru, City Attorney Lee Ann Brehm, Risk Manager Approved as to City Funding: Larry Spring, Chief Financial Officer 12