Loading...
HomeMy WebLinkAboutExhibit 1ACCESS ,INDEMNIFICATION AND ACCEPTANCE AGREEMENT This Access, Indemnification and Acceptance Agreement (the "Agreement") is made and entered into this day of , 20 by and between the City of Miami, a municipal corporation of the State of Florida ("City " or "Owner") and Bouygues Civil Works Florida, Inc. (the "Company"), a corporation organized under the laws of the State of Florida and qualified to transact business in Florida and provides as follows: WHEREAS, the Owner is the fee simple owner of certain real property located at Folio Number-101-4209-000-0010 Miami, Florida, known as Virginia Key North Point and legally described in Exhibit A, attached hereto and made a part hereof (the "Property"); and WHEREAS, the Owner grants to the Company, its agents, representatives, employees or contractors herein after collectively referred to as "the Company", permission to enter upon the Property (as such term is defined below) for the purpose of performing certain work relating to the acceptance of fill material, and movement of land related to covering existing Public Works site, building of berms around the Water and Sewer Facility site on the Property, subject to providing the Owner's Public Facilities Director at 444 S.W. 2"d Avenue, Miami, Florida 33130 not less than twenty-four (24) hours advance notice of when access is first required; and WHEREAS, the Company is generously and graciously giving, devising and quitclaiming to the City approximately 240,000 cubic yards of tunnel fill material (as measured after being placed in final location) ("fill"), which the Miami -Dade County Department of Environmental Resources Management ("DERM") will have an opportunity to test prior to delivery and determine that such fill is suitable for use by the City; and NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants herein set forth, the parties hereto agree as follows: 1. DUTIES OF THE COMPANY 1.1 The Company will perform the following scope of work on the Property: (a) Donate, give, devise and quitclaim to the City approximately Two Hundred Forty Thousand(240,000) cubic yards of fill material as measured after being placed in. final locations to be approved by the City; and (b) Be responsible for satisfying all applicable environmental (DERM, etc.) requirements and attaining all environmental approvals that may be required for the testing, transport, drying and placement of the fill material in temporary and final locations to be approved by the City and for any site preparation and restoration; and (c) Movement of land; and (d) Provide fill to Public Works and such other agencies, departments, or other instrumentalities of the City as are designated by the City Manager or Public Works Director. MIA181,435,571v.2 J���� 17 (e) The Company will perform this Agreement in a commercially reasonable manner following the best practices of its trade as exercised in South Florida. (f) The Company will be responsible for gaining all necessary or applicable permits (local, state, and federal) for the transport, as well as the temporary and permanent placement of this material at the Property. The Company is also responsible for permitting, site preparation, construction, removal, and restoration of any facilities (dock, pier, barge etc.) that may be required to deliver the material to its temporary or final destination. 1.2 (a) Prior to the Company, its agents, employees, and contractors, or anyone directly or indirectly employed by any of them enteringupon the Property for purposes of performing the work described above, the Company, shall obtain and maintain or cause to be obtained and maintained throughout the Term of the Agreement, the types and amounts of insurance coverages set forth in Exhibit B, the Certificate of Liability Insurance attached hereto and incorporated therein by this reference in such reasonable amounts as approved by the Owner's Risk Management Director protecting the City, its officers and employees, against all claims for personal injury, property damage, and regulatory actions by governmental agencies arising out of or related to the activities undertaken by the Company upon the Property and naming the City as an additional insured. (b) The insurance required hereunder shall be effective for the Term and any extensions or renewals thereof. Owner's Risk Management Administrator shall review the insurance requirements upon any extension or renewal of the Term and reserves the right to make reasonable changes in the types and amounts of insurance coverages as necessary and shall revise Exhibit "B" accordingly as necessary. (c) The Company shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the Term, including any extensions hereof. If insurance certificates are scheduled to expire during the Term and any extension thereof, the Company shall be responsible for submitting new or renewed insurance certificates to the Owner's Risk Management Administrator at least ten (10) calendar days before such expiration. In the event that expired certificates are not replaced, with new or renewed certificates which cover the Term and any extension thereof; the Owner shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the Owner's Risk Management Administrator; and the Company shall not enter the Property nor allow any of its employees, agents or contractors to enter the Property; or the Owner may, at its sole discretion, terminate the Agreement. (d) Compliance with the foregoing insurance requirements shall not relieve the Company of its liabilities and obligations under this Agreement. 1.3 The Company has requested and the Owner has agreed to grant access to the Property to perform the work described in Section 1.1 above for a period of thirty 30 months from the date of notice by the Company (the "Term"). If additional time is required, the Company shall notify the Owner at least three (3) days prior to the commencement of the work. 2 MIA 181, 435, 571 v.2 1.4 The Company will use reasonable efforts to ensure that only material that meets DERM approval or any other permitting agency having jurisdiction will be placed on site and it will be placed in a manner approved by DERM or any other permitting agency having jurisdiction. 1.5 The Board of Directors of the Company shall approve corporate resolutions in substantially the form attached hereto as Exhibit C. 1.6 .Approximately 190,000 cubic yards of material will be placed in Area A as designated on the figure attached hereto as Exhibit D. Actual amount of material to be placed will result from the direction of the City as to placement of material and elevations to be established in Area A at the direction of at this site shall conform with direction from the City regarding desired elevations for this area. Approximately 50,000 cubic yards will be placed to establish a berm south of and east of the Water and Sewer treatment plant per the typical sections attached here to as Exhibit E. 2. RIGHT OF ACCESS 2.1 The Owner grants to the Company, temporary access rights, subject to the conditions and limitations hereinafter contained, to the Property. 2.2 The Company shall indemnify, defend (excluding professional liability) and hold harmless the Owner and Virginia Key Beach Trust, its officers, employees, and servants from and against all claims, damages or losses resulting from bodily injury, including death to anyone injured on the Property and property damage to or at the described premises as a result of the negligence, action or omissions of the Company, its employees, sub -contractors, or consultants performing the work or activities on its behalf. This Section shall survive the cancellation or expiration of the Agreement. This Section shall be interpreted to comply with § 725.06, Fla. Stat. if such Statute is deemed applicable by a court of competent jurisdiction. Ten ($10.00) dollars is given to the company as specific and independent consideration for the granting of this indemnity. 2.3 The Company shall list the City of Miami and Virginia Key Beach Trust as an additional insured on its general liability, auto and excess liability policies, and shall require all sub -contractors, if any, to carry equal limits of coverage, including applicable coverage endorsements, as may be applicable in connection to the scope of services being performed. 2.4 The Company hereby voluntarily and knowingly waives any and all claims against the Owner for personal injury or property damage sustained by the Company, its agents, employees, contractors, sub -contractors or consultants arising out of or related to the activities undertaken by the Company, its E.gents, employees, contractors, sub -contractors, or consultants upon the Property or in connection with the work and releases the Owner for any claims in connection therewith. The Company, its agents, representatives or contractors cannot under Florida law place any type of lien or encumbrance on the Property. 3 M/A 181, 435, 571 v.2 2.5 The Company agrees that in the event of damage to the Property caused by the Company outside the general work area, the Company will restore the Property to the same or better condition than it was before the work was conducted. 2.6 Notwithstanding any other term or provision herein it is expressly understood and agreed by the Company that the Owner is not responsible, liable, or otherwise answerable to pay any fee, cost, expense, reimbursement or other monetary compensation to the Company, its agents, representatives, employees or contractors for their work or their services under this Agreement. 2.7 The term of This Agreement shall be for thirty (30) months from the date of execution of this Agreement or until formal acceptance of the work by the Owner, whichever occurs first. The Owner may for cause grant a written thirty (30) day extension for completion of the work. § 2.2, § 2.4, § 2.5 and § 2.6 shall survive the expiration or cancellation of this Agreement. 2.8 The City hereby gratefully accepts the grant, devise, and gift from the Company of approximately 240,000 cubic yards of tunnel fill material ("fill"). The fill will be transported by the Company to the Property at its own cost and expense. The City will not pay a cost, fee, or other imposition, levy, or assessment for such fill or any of the work associated with its transport and placement at the Property. DERM and any other environmental agencies with jurisdiction will be afforded the occasion and opportunity to test the fill prior to delivery. If DERM disapproves of the fill the Company will either provide alternative fill to the City to satisfy this section or the City may elect to accept a lesser amount of material. The Company will execute a bill of sale absolute or bill of lading or similar document it customarily employs when conveying and transporting fill. 2.9 The Company may use staging areas B and C as depicted in Exhibit D per the following requirements: (a) The service road around the Water and Sewer facility may not be blocked or interrupted (b) Area B may be used for temporary staging of fill material prior to placement in final location. (c) Area C may be used for temporary staging of fill material prior to placement in final location. However, Area C will be restored to a level and stable condition suitable for vehicular parking at least one week before the annually recurring Renaissance Festival (begins December 27, 2010 and a date to be determined in December 2011). It may be used again for staging of fill material once the Renaissance Festival is no longer using the site and must once again be restored for vehicular parking at least one week before the annually recurring Key Biscayne Tennis Event (begins March 23, 2011 and a date to be determined in March 2012). Use of Area C should be minimized to the maximum extent possible. (d) The City reserves the right to schedule events for Site B and provide Company fourteen (14) days notice before site is needed in level and stable condition suitable for vehicular parking. 4 M/A181,435, 571 v.2 (e) The Company shall bare all costs associated with placement and movement of fill and of restoration activities as outlined above. The Owner grants permission to the Company to park its equipment in the Property during the Term. The undersigned hereby acknowledges that he/she has requested permission to perform certain work relating to the providing of fill material on City owned property located at, Miami, Florida. Dated and executed by the Company this day of , 2010. WITNESS: By: By: Attest: Corporate Secretary Affix Corporate Seal 5 MlA 181.435, 571 v.2 Bouygues Civil Works Florida Inc., By: Name: Title: President IN WITNESS WHEREOF, the Owner has caused this Access and Indemnification Agreement to be executed this day of , 2010. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: Priscilla A. Thompson, City Clerk City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM REQUIREMENTS AND CORRECTNESS Gary Reshefsky, Director Risk Management Department 6 MIA 181, 435, 571 v.2 By: Julie O. Bru City Attorney EXHIBIT A DESCRIPTION OF THE PROPERTY MIA181, 435, 571 v.2