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HomeMy WebLinkAboutExhibitDraft 07/03/06 IMPROVEMENTS AND INDEMNIFICATION AGREEMENT For Grant by Turkel Resource Foundation, Inc. To City of Miami This Improvements and Indemnification Agreement ("Agreement") is made this day of , 2006 (the "Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida, located at 444 S.W. 211d Avenue, 10`11 Floor, Miami, Florida 33130 ("CITY") and Turkel Resource Foundation, Inc., a Florida not -for -profit corporation, whose principal address is 2871 Oak Avenue, Miami, Florida 33133 ("BENEFACTOR" or "Turkel Resource Foundation"), RECITALS WHEREAS, the City is the owner of that real property located at 100 Northwest 17 Street, Miami, Florida, commonly known as the "Dorsey Memorial Library" (hereinafter referred to as the "Property" or the "Dorsey Memorial Library"); and WHEREAS, the Turkel Resource Foundation will be receiving $250,000 in grant funds from the General Obligation Bonds issued by Miami -Dade County, to restore the Dorsey Memorial Library for reuse as a library with archives of African -American history; and WHEREAS, said improvements are to consist of the following: Repairs and/or improvements of sidewalks, concrete work, carpentry, lumber, masonry, doors and frames, insulation, hardware, windows, shutters, lath and plaster, drywall, wood floors, ceramic tiles, painting, plumbing, HVAC, electrical including project administration and design as sct forth in Exhibit A hereto ("Improvements"); and Draft 06-901 and 06.1021 WHEREAS, the Turkel Resource Foundation wishes to contract for the appropriate professional, construction and other services and oversee the work of the Improvements; and WHEREAS, the Turkel Resource Foundation would like to donate and make a grant of the Improvements to the City; and WHEREAS, the Miami City Commission, pursuant to Resolution No. adopted on 2006 (a copy of which is attached hereto as "Attachment B") has authorized the City Manager to enter into an improvements agreement with BENEFACTOR who will be responsible for the funding, installation and all professional, construction, and other services relating to the Improvements and to accept the donation of the Improvements subject to the execution of this Improvements Agreement; and WHEREAS, BENEFACTOR's Board of Directors has authorized BENEFACTOR to enter into and to undertake the responsibilities. and obligations under this Agreement pursuant to its not -for -profit corporation resolution adopted on , 2006 (a copy of which is attached hereto as "Attachment C"). NOW THEREFORE, for and in consideration of one ($1.00) dollar and other valuable consideration contained herein, the receipt and sufficiency of which are hereby acknowledged, the City and the Turkel Resource Foundation agree as follows: TERMS 1. RECITALS AND INCORPORATIONS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. The description of the Draft 06-901 and 06-1021 Improvements and the funding related thereto (described below) is hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "A". The CITY'S Resolution No, is hereby incorporated into, made a part of this Agreement, and attached hereto as Attachment "B". BENEFACTOR'S not -for -profit corporate resolution is hereby incorporated into, made a part of this Agreement and attached hereto as Attachment "C". The Insurance Requirements are hereby incorporated into, made a part of this Agreement and attached hereto as Attachment "D". 2. GRANT, FUNDING, DONATION OF IN -KIND SERVICES, AND IMPROVEMENTS. A. The BENEFACTOR hereby donates and makes a grant of the improvements to the City ("GRANT") and hereby agrees to directly contract for all professional, construction, and other services required to perform the Improvements, at no cost to the City, and to oversee the Improvements as described in•Attachment "A" attached hereto and made part hereof. BENEFACTOR hereby acknowledges and agrees that and CITY hereby reserves the right to approve in advance, as and if necessary, any and all matters related to the Improvements that would be required of the City as owner of the Dorsey Memorial Library. B. BENEFACTOR hereby grants funding for, in -kind services for, and agrees to provide for the creation of, installation, permitting, and construction of any and all Improvements to be provided by BENEFACTOR. The BENEFACTOR shall be solely responsible for any and all costs and/or in -kind services associated with the creation, installation, permitting, and construction of the Improvements that are the subject of the GRANT and shall be responsible for overseeing the Drarl 06.901 and 06-1021 Improvements. C. BENEFACTOR represents to the CITY that: (i) it possesses or it will require all individuals, contractors, subcontractors, and/or businesses creating, installing, and/or constructing the Improvements to posses all qualifications, licenses and any particular expertise required for the performance of such tasks, including but not limited to full qualification to do business in Florida and all required licenses for working in the State of Florida, Miami -Dade County, and the City of Miami; (ii) it is not delinquent in the payment of any sums due the City, including payment of permits, fees, occupational licenses, etc., nor in the performance of any obligations to the City, (iii) all individuals, subcontractors, and/or businesses assigned to perform the tasks are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; (iv) the tasks will be performed in the manner, at such times, and for the budgeted amounts described in Attachment "A", (v) each person executing this Agreement on behalf of BENEFACTOR has been duly authorized to so execute the same and . fully bind BENEFACTOR as a party to this Agreement, and (vi) it shall observe and fulfill all of the requirements and obligations imposed by Miami -Dade County upon BENEFACTOR as the recipient of General Obligation Bond funding in connection with the Improvements to the Dorsey Memorial Library, 3. RIGHT OF ENTRY, USE OF PROPERTY, AND AUTHORIZATION TO PROCEED. The CITY grants to the BENEFACTOR the right to access and to enter upon the Property during the Term, as hereinafter defined, for the purposes of making the Improvements. The CITY agrees to provide the BENEFACTOR non- 4 Qrall 06-901 and 06-1021 exclusive use, with the City, of the Dorsey Memorial Library areas to be improved during the Term, as hereinafter defined so that BENEFACTOR can make, cause to be made, and oversee the Improvements. The CITY reserves the rights to inspect the Property as necessary and to revoke BENEFACTOR's right to access, to enter, or to remain in the Property for reasonable cause as and if necessary. 5. TERM. The term of this Agreement shall commence on the date it is fully executed by all parties being the Effective Date and shall end on the date which is one (I) year from the Effective Date, unless extended for a specific renewal term of up to one (1) additional one-year period by the mutual written agreement of the City Manager and the BENEFACTOR. 5, INDEMNI.TY, INSURANCE AND RELEASES: A. Turkel Resource Foundation shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the services required to make the Improvements, which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Turkel Resource Foundation, regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of Turkel Draft 06-901 and 06-1021 5 Resource Foundation to provide the Improvements or the failure of Turkel Resource Foundation to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of the Agreement. Turkel Resource Foundation expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Turkel Resource Foundation, or any of its subcontractors, as provided above, for which Turkel Resource Foundation's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. The indemnity provision set forth in this Paragraph 5(A) shall commence on the Effective Date, shall survive termination of this Agreement and shall continue in full force and effect until the earlier of {a) one year from the Effective Date; or (b) such time as both the City Manager and Turkel Resource Foundation shall in writing agree to terminate this indemnity provision. B. Prior to Turkel Resource Foundation, its agents, employees, and contractors, or anyone directly or indirectly employed by any of them entering upon the Property for purposes of making the Improvements, the Turkel Resource Foundation. shall obtain and maintain or cause to obtained and maintained throughout the Term of the Agreement, the types and amounts of insurance coverages set. forth in Exhibit D, attached hereto and incorporated therein by this reference in such reasonable amounts as approved by the City of Miami's Risk Management Administrator protecting the City, against all claims for personal injury, property damage, and regulatory actions by governmental agencies arising out of or related to the activities undertaken by Turkel Resource Daft 06-901 and 06-1021 6 Foundation upon the Property and naming the City as an additional insured. The insurance required hereunder shall be effective for the Term and any extensions or renewals thereof. The City'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 D accordingly as necessary. BENEFACTOR shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. if insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, BENEFACTOR shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Administrator at a minimum of thirty (30) calendar days in advance of such expiration. In the event that expired certificates are not replaced, with new or renewed certificates which cover the term of this Agreement and any extension thereof: (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Administrator; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek appropriate remedies in conjunction with the violation of the terms and conditions of this Agreement. Compliance with the foregoing insurance requirements shall not relieve BENEFACTOR of its liabilities and obligations under this Agreement. Draft 06.9OI and 06-1021 7 C. Turkel Resource Foundation hereby waives any and all claims against the City for personal injury or property damage, sustained by the Turkel Resource Foundation, its agents, employees, consultants and contractors upon the Property, or in connection with the performance of the Improvements and releases the City from any claims in connection therewith, other than those claims arising from or relating to the willful misconduct or negligence of the City, its employees, agents or contractors, Similarly, Turkel Resource Foundation hereby waives any and all indemnity claims against the City for third party regulatory actions by governmental agencies against the Turkel Resource Foundation in connection with the performance of the Improvements other than those claims arising from or relating to the willful misconduct or negligence of the City, its employees, agents or contractors. The provisions of this Paragraph 5(C) shall be effective until the expiration of the Term. 6. MECHANIC'S LIENS. Turkel Resource Foundation, at its expense and with due diligence and dispatch, shall secure the cancellation or discharge of or bond off same in the manner permitted by law, all notices of violations arising from or otherwise in connection with the Improvements which shall be issued by any public authority having or asserting jurisdiction. Turkel Resource Foundation shall promptly pay its contractors and material men for all work and labor done at Turkel Resource Foundation's request.' Should any such lien be asserted or filed, regardless of the validity of said liens or claims, Turkel Resource Foundation shall bond against or discharge the same within fifteen (15) calendar days of Turkel Resource Foundation's receipt of notice of the filing of said encumbrance. In the event Turkel Resource Foundation fails to remove or bond against Draft 06.901 and 06.1021 S said lien by paying the full amount claimed, Turkel Resource Foundation shall pay the City upon demand any amount paid out by City, including City's costs, expenses and reasonable attorneys' fees. Turkel Resource Foundation further agrees to hold City harmless from, and to indemnify the City against, any and all claims, demands and expenses, including reasonable attorney's fees, by reason of any claims of any contractor, subcontractor, material man, laborer or any other third person with whom Turkel Resource Foundation has contracted or otherwise is found liable for, in respect to the Area. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, materials man or supplier thereof against any part of the Property or any of the improvements thereon and each such contract shall provide that the contractor must insert a statement in any subcontract or purchase order that the contractor's contract so provides for waiver of lien and that the subcontractor, material man and supplier agree to be bound by such provision. 7. REMEDIES• FOR NON-COMPLIANCE. If the BENEFACTOR materially fails to perform any of its obligations or covenants hereunder, or materially breaches any of the terms contained herein, then the CITY shall have the right to take one or more of the following actions: (a) Deny BENEFACTOR use of the Property, or (b) Terminate this Agreement, or (b) Take other remedies that may be legally advisable. I)rat 0G-90I and 06-1021 8, TERMINATION FOR CONVENIENCE. CITY retains the right to terminate this Agreement at any time without penalty to the CITY. CITY may terminate this Agreement by notice to the BENEFACTOR at any time in CITY's sole discretion without penalty to the City. 9. NO CONFLICT OF INTEREST. BENEFACTOR has received copies of, and is familiar with the following provisions regarding conflict of interest in the performance of this Agreement by the BENEFACTOR. BENEFACTOR covenants, represents and warrants that it will comply with all such conflict of interest provisions. Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, BENEFACTOR hereby certifies to CITY that no individual member of BENEFACTOR, no employee, and no subcontractor under this Agreement nor any immediate family member of any of the same is also a member of any board, commiSSion, or agency of the City. BENEFACTOR hereby represents and warrants to the CITY that throughout the term of this Agreement, BENEFACTOR, its employees, its board members, and its subcontractor will abide by this prohibition of the City Code. 10. AMENDMENTS. No amendments to this Agreement shall be binding on either party, unless in writing and signed by both parties. 11. OWNERSHIP OF DOCUMENTS. All documents developed by the BENEFACTOR or at its request pursuant to this Agreement shall be delivered to the CITY upon completion of the Improvements, and as otherwise contemplated by this Agreement, and shall become the property of the CITY, without restriction or limitation on its use. BENEFACTOR agrees that all documents maintained and generated pursuant Draft 06.901 and 06-102I 10 to this Agreement shall be subject to all provisions of the Public Records Law, Chapter 119, Florida Statutes. It is further understood by and between the parties that any documents which are given by the CITY to the BENEFACTOR pursuant to this Agreement shall at all times remain the property of the CITY, and shall not be used by the BENEFACTOR for any other purposes whatsoever, without the written consent of the CITY. 12. NON-DELEGATABILITY. The obligations of the BENEFACTOR under this Agreement shall not be delegated or assigned to any other party by BENEFACTOR without the CITY's prior written consent which may be withheld by the CITY, in its sole discretion. 13. MISCELLANEOUS. A. This Agreement shall be construed and enforced according with all applicable laws, ordinances and codes of U.S. Federal, State of Florida, and local governments, Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives tiny defense, whether asserted by motion or pleading, that the aforementioned courts are an iLnproper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial, B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitu(e a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. Draft 06.901 and 06-1021 D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the same shall he deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall rule. F. BENEFACTOR shall comply with all applicable laws, rules and regulations in the performance of this Agreement, including but not limited .to liccnsure, and certifications required by law, if any, for BENEFACTOR'S Improvements and tasks contemplated by this Agreement. 14, NOTICES: All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail, addressed to the party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or, if by mail, on the fifth day after being posted, or the date of actual receipt, whichever is earlier. CITY OF MIAMI DIRECTOR, PUBLIC FACILITIES DEPARTMENT 444 S.W. 2ND AVENUE, 3rd Floor MIAMI, FL 33130 Drafi 06-901 and 06-1021 TURKEL RESOURCE FOUNDATION, INC. Attn: Leonard Turkel President 2871 Oak Avenue Miami, FL 33133 12 With copies to: City Manager, City of Miami 444 S.W. 2nd Avenue, le Floor Miami, Florida 33130 City Attorney, City of Miami 444 S.W. 2° Avenue, 9th Floor Miami, Florida 33130 15. INDEPENDENT CONTRACTOR. BENEFACTOR, its contractors, subcontractors, and its employees and agents shall be deemed to be independent contractors, and not agents or employees of the CITY, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the CITY, or any rights generally afforded classified or unclassified employees; further, they shall not be deemed entitled to the Florida Workers' Compensation benefits as employees of the CITY. 16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 17. 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, 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 the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Draft 06-901 and 06.102! 13 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. 18. ENTIRE AGREEMENT. This instrument and its attachments constitute the sole and only agreement of the parties hereto relating to said GRANT, funding, creation, installation, construction, and the Improvements on the Property, and correctly sets forth the rights, duties, and obligations promises, negotiations, or representations not expressly set forth in the Agreement are of no force or effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by the respective officials thereunto duly authorized on the first date above written. ATTEST: (AFFIX SEAL) TURKEL RESOURCE FOUNDATION, INC. a Florida not -for profit corporation BY; Name: LEONARD TURKEL CORPORATE SECRETARY PRESIDENT CITY OF MIAMI, a municipal corporation of the State of Florida ATTEST: BY: PRISCILLA A. THOMPSON, CITY CLERK JOE ARRIOLA CITY MANAGER Draft 05•901 and 06-1021 14 APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: LEEANN BREHM, RISK JORGE L. FERNANDEZ MANAGEMENT ADMINISTRATOR CITY ATTORNEY L rafi 06.901 and 06-1021 15