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HomeMy WebLinkAboutExhibit Jan 27, 2011ACCESS . INDEMNIFICATION AND ACCEPTANCE AGREEMENT This Access, Indemnification and Acceptance Agreement (the "Agreement") is made and entered into this day of , 2011, 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# 01-4209-000-0010 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 Fifty Five Thousand (55,000) Cubic Yards ("CY") 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 Fifty Five Thousand (55,000) Cubic Yards ("CY" ) 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 Pe#/o,49/0 MJA181,435,571v.2 (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. (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 entering upon 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 twelve (12) months 2 MIA181,435, 571 v.2 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. The Company will affirm and 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. 1.4 Specifically, any fill/ soil brought to the Property by the Company, as a minimum, must meet DERM's Fill/ Soil Re -Use guidelines and requirements for Residential Fi11/Soil. All fill/ soil must be tested off -site and the appropriate environmental agencies must provide the City with the necessary clearances prior to the fill/ soil being transported to the Property. 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 55,000 CY 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 Park Trust, their respective officers, employees, and servants from and against all claims, damages or losses resulting from contaminated ,polluted or unpermitted fill/soil or other material brought on the Property by the Company or any statutory, strict liability or civil action related thereto, 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 or even if it is alleged that the City, its officials and/or employees were negligent, unless such injuries or damages are ultimately proven to be the result of grossly negligent or willful acts or omissions on the part of the City, its officials and/or employees. The Company shall insure that adequate safety precautions are in effect at all times during the term of the Agreement. This required indemnification and hold harmless shall survive the revocation or expiration of the Agreement. 2.3 . 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. 3 M1A181, 435, 571 v.2 2.4 The Company shall list the Ciry of Miami and Virginia Key Beach Park 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. 2.5 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 agents, 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. 2.6 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 twelve (12) 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 55,000 CY 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 area A 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 A may be used for temporary staging of fill material prior to placement in final location. 4 M/A181,435, 571 v.2 (c) 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 , 2011. WITNESS: By: By: Attest: Corporate Secretary Affix Corporate Seal MIA 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 . 2011. ATTEST: CITY OF MI.AMI, a municipal corporation of the State of Florida By: Priscilla A. Thompson, City Clerk Tony E. Crapp, Jr., City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM REQUIREMENTS AND CORRECTNESS Gary Reshefsky, Director Risk Management Department MIA 181, 435, 571 v.2 By: Julie O. Bru City Attorney EXHIBIT A DESCRIPTION OF THE PROPERTY MIA181,435, 571 v.2 EXHIBIT B INSURANCE REQUIREMENTS -ACCESS AND INDEMNIFICATION Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required $1,000,000 $2,000,000 $1,000,000 $1,000,000 City of Miami & Virginia Key Beach Park Trust included as an additional insured Employees included as insured Contingent and Contractual Liability Explosion, Collapse and Underground Coverage I1. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami & Virginia Key Beach Park Trust included as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $500,000 for bodily injury caused by an accident, each accident $500,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit MIA181,435,571v.2 IV. Umbrella Liability (Excess Follow Form) A. Limits of Liability $1,000,000 Each Occurrence $1,000,000 Policy Aggregate City of Miami and Virginia Key Beach Park Trust included as an additional insured V. Professional Liability/Pollution Liability (If Applicable) A. Limits of Liability Each Claim $2,000,000 Aggregate Limit $2,000,000 The above policies shall provide the City of Miami with written notice of cancellation or material change (defined as "a reduction in policy limits by endorsement during the policy period") in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. MIA181,435, 571 v.2 EXHIBIT C CORPORATE RESOLUTION WHEREAS. desires to enter into an agreement with the City of Miami for the purpose of performing the work described in the contract to which this resolution is attached: and WHEREAS, the Board of Directors at a duly held corporate meeting has considered the matter in accordance with the By -Laws of the corporation; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that the (type title of officer) , is hereby authorized (type name of officer) and instructed to enter into a contract, in the name and on behalf of this corporation, with the City of Miami upon the terms contained in the proposed contract to which this resolution is attached and to execute the corresponding performance bond. DATED this day of , 20 Chairperson of the Board of Directors Corporate Secretary (Corporate Seal) MIA181,435,571v.2 EXHIBIT "D" AREA PLAN MIA181,435, 571 v.2 PI O s.1 Jo. c L?LRRM TYPE A !3Ek11 TYPE 8 SUMMAFR Y OF EAR Tri WORK ITEM Length 9 Areo Section Oi/ANTITY ,Perm Type A 1Z20.0 1,F 360.0 SF. 16267.0 C.Y. flerm Tyne H 2940.0 1F 400.0 SF 36148.0 C.Y. Total Embankment .524t5.0 aY. Plates. 1. Compacted in 72" lifts to 95Z at AAS4T0 T99. 2. Apply gross by seeding according to section 670 of the F'UOT spec. Crass seed to be peterminad by parks naturalist. 3. 1nsta1i motive shrubs of typo to be determined by parks rotwolist. Shrubs to be pfare an tot top of berm t0' et center. M iimum shrubs sire J gaNan., t8 fl T, r8"SFR., rd"OC.. Ore 1f r n;r;o.a ra:u+DSc, CITY OF MIAMI CaR4. I IFia111 I4:46.+ elf10'M/IMI r.Irrr. a l,11PRGi'ri/GATJ PROCILIM 4,11.1a. *Fr - M1G1, Poor - TYPICAL SECTIONS AND QUANTITIES WEST No. NA181,435,571v.2