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HomeMy WebLinkAboutExhibit 1 (05/10/12)DEVELOPMENT AGREEMENT BY AND AMONG THE CITY OF MIAMI, MIAMI SPORTS AND EXHIBITION AUTHORITY AND LINDEN AIRPORT SERVICES CORPORATION d/b/a FOR THE CONSTRUCTION OF HELIPORT IMPROVEMENTS ON WATSON ISLAND, MIAMI, FLORIDA DATED: , 2012 ARTICLE I Section 1.1 Section 1.2 Section 1.3 Section 1.4 ARTICLE II Section 2.1 Section 2.2 Section 2.3 ARTICLE III Section 3.1 ARTICLE IV Section 4.1 Section 4.2 Section 4.3 Section 4.4 ARTICLE V Section 5.1 Section 5.2 Section 5.3 Section 5.4 Section 5.5 Section 5.6 ARTICLE VI Section 6.1 Section 6.2 Section 6.3 Section 6.4 Section 6.5 Section 6.6 Section 6.7 Section 6.8 Section 6.9 Section 6.10 TABLE OF CONTENTS Page DEFINITIONS AND GENERAL PROVISIONS 5 Definitions 5 Controlling Provisions 9 Exhibits 10 Recitals 10 PURPOSE, TERM AND AUTHORITY 10 Purpose 10 Teiiii 10 Authority 10 CITY'S RESPONSIBILITIES 10 Environmental 10 CONSTRUCTION EXPENSES 11 Construction Expenses 11 Method of Payment for Construction Expenses 11 FDOT Funding 12 Additional Funding 12 PLANS AND CONSTRUCTION DOCUMENTS 12 Design Development Plans and Preliminary Cost Estimate 12 Plans and Cost Estimate 12 Plan Approval Process 13 Project Inspector 14 Conformity with Legal Requirements 14 Permits and Approvals 14 CONSTRUCTION OF SUBLEASED PREMISES 14 Procurement of Construction Services 14 Construction of the Project 15 Phased Construction 15 Progress Reports and Construction Meetings 15 Completion of the Heliport 16 Substantial Completion 16 Tenant Improvements 16 Ownership of Heliport 16 Change Orders 16 Liens 17 1 ARTICLE VII Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section7.5 Section 7.6 Section 7.7 Section 7.8 Section 7.9 ARTICLE VIII Section 8.1 Section 8.2 Section 8.3 ARTICLE IX Section 9.1 Section 9.2 Section 9.3 ARTICLE X ARTICLE XI Section 11.1 Section 11.2 Section 11.3 Section 11.4 Section 11.5 Section 11.6 Section 11.7 ARTICLE XII Section 12.1 Section 12.2 ARTICLE XIII Section 13.1 ARTICLE XIV Section 14.1 Section 14.2 Section 14.3 Section 14.4 INSURANCE AND BOND REQUIREMENTS 18 Insurance 18 Named Insured 18 Insurance Does Not Waive Tenant's Obligations 18 Proof of Loss 18 Property Insurance Proceeds 18 Covenant for Commencement and Completion of Reconstruction 19 Tenant's Option to Terminate 19 Waiver of Subrogation Rights 19 Payment and Performance Bonds 19 CONDITIONS PRECEDENT 20 Review Period Conditions 20 Failure of Review Period Conditions 21 Title Defects 21 OTHER TERMINATION RIGHTS 22 Notice of Termination 22 Effect of Termination 22 Relinquish due to Termination 22 INDEMNIFICATION 22 DEFAULT 23 Events of Default 23 Remedies in Event of Default by the Tenant 24 Remedies in Event of Default by City or Authority 24 Unavoidable Delay 24 Obligations, Rights and Remedies Cumulative 24 Mitigation 25 Termination Due to Default 25 ARBITRATION 25 Arbitrator(s) 25 ' Arbitration Process 26 NOTICES 26 Notice 26 MISCELLANEOUS PROVISIONS 28 Non -Assignable 28 Successors and Assigns 28 Amendments 28 Governing Law 28 2 Section 14.5 Waiver of Jury Trial , 28 Section 14.6 Severability 28 Section 14.7 Time of Essence 28 Section 14.8 Captions 29 Section 14.9 Obligations Survive Termination 29 Section 14.10 Approvals, Consents and Representatives 29 Section 14.11 Entire Agreement 29 EXHIBITS Exhibit A Legal Description of Survey of the Property Exhibit B Legal Description and Survey of Watson Island Heliport (the "Subleased Premises") Exhibit C Conceptual Site Plan of Watson Island Heliport Exhibit D Cost Estimate for the Construction of the Watson Island Heliport Exhibit E Insurance Requirements Exhibit F Payment and Perfoiiiiance Bond Requirements Exhibit G Approved Airport Layout Plans of the Watson. Island Air Transportation Facility Exhibit H Florida Department of Transportation Approval of the Watson Island Heliport Exhibit I Federal Aviation Administration Approval of the Watson Island Heliport Exhibit J Joint Participation Agreement Exhibit K Environmental Condition Acceptance Certificate Exhibit L Final Plans 3 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement"), is made and entered into this day of , 2012, by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), Miami Sports and Exhibition Authority, an independent and autonomous agency and instrumentality of the City of Miami ("Authority"), and Linden Airport Services Corporation d/b/a/ Watson Island Heliport Corporation (pro forma), a Florida corporation ("Tenant"), to establish the terms and conditions for the development of a Heliport on Watson Island in the City of Miami, Miami -Dade County, Florida. RECITALS A. The City and the Authority entered into that certain Interlocal Agreement dated as of August 14, 1997, as amended on , 2012 (the "Interlocal Agreement"), whereby the City leased to the Authority approximately 5.6 acres of land on a portion of Watson Island in the City of Miami, Miami -Dade County, Florida, as more particularly described in Exhibit "A" attached hereto (the "Property") for the purpose of establishing a seaplane and helicopter facility; and B. The City and the Authority issued a Request for Proposal (the "RFP") for operators for the Watson Island Aviation and Visitors Center, also known as the Watson Island Air Transportation Facility, on August 19, 2002; and C. The City and the Authority received a Proposal for a Heliport Operator (the "Proposal') for the Watson Island Aviation and Visitors Center on September 27, 2002 by Linden Airport Services Corporation; and D. The City has obtained a commitment from the State of Florida Department of Transportation ("FDOT") to fund, in part, the costs of construction of the Watson Island Air Transportation Facility in accordance with the provisions of that certain Joint Participation Agreement between the City and FDOT .dated TBD , under Contract Number APY07, as in the total sum of $1,096,000 or 17% of the total Project Cost, whichever is less (the "JPA"); and E. On March 30, 2010, the City obtained approval of the Airport Layout Plan ("ALP") and Narrative Report of the Watson Island Air Transportation Facility from FDOT, in which they determined the reports to be in compliance with Florida Administrative Code Chapter 14-60 and the FDOT Guidebook for Airport Master Planning, subject to certain 4 conditions which the tenant must comply with as depicted in Exhibit "H"; and F. On July 30, 2010, the City obtained approval of Form 7480-1, Notice of Landing Area Proposal, from the Federal Aviation Administration ("FAA"), in which they determined that the proposed public use landing area will not adversely affect the safe and efficient use of the navigable airspace by aircraft, subject to certain conditions which the Tenant must comply with as depicted in Exhibit "H"; and G. In accordance with the Interlocal Agreement, the Authority and the Tenant have enteredinto a Sublease Agreement, dated of even date herewith ("Sublease Agreement"), to provide for the management and use of approximately 2.41 Acres of the Watson Island Air Transportation Facility (the "Subleased Premises") as more particularly depicted in Exhibit "B"; and H. The Tenant has committed to contribute to the construction of the ' Heliport: (1) a sum equal to or greater than the total commitment contribution from FDOT; and (2) Three -Hundred Fifty Thousand Dollars ($350,000) as stated in the response to the Proposal for Heliport Operator for the Watson Island Aviation and Visitor Center dated September 27, 2002; and The Parties have determined that it is in the best interest of the Parties to transfer to the Tenant the responsibility for the construction of the Heliport and to set forth the Parties' funding obligations, on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing and of the covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency.ofwhich are hereby acknowledged, the Parties agree as follows: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS Section 1.1 Definitions. For purposes of this Agreement, the following words shall have the meanings attributed to them in this Section: "Agreement" means this Development Agreement. "Airport Layout Plan" means the approved plans for the Watson Island Air Transportation Facility by the Federal Aviation Administration, as shown in Exhibit 5 "Approvals" means all governmental approvals and permits, including the building permit(s) and approvals from the City and the State of Florida, and approvals required under any Legal Requirements for the commencement of construction of the Heliport. "Arbitration" means the arbitration procedures set forth in Article XI of this Agreement. "Architect" means the firm contracted by the Tenant. "Architectural Agreement" means the Professional Services Agreement to be entered into by the Tenant and the Architect for the provision of the architectural services for the Subleased Premises, as amended or supplemented from time to time, with the City's and the Authority's consent. "Authority" means Miami Sports and Exhibition Authority, an independent and autonomous agency and instrumentality of the City. "Business Days" means Monday through Friday excluding legal holidays. "Change Orders" shall have the meaning given to it in Section 6.9. "City" means the City of Miami, a municipal corporation of the State of Florida. "City's Construction Contribution" shall have the meaning set forth in Section 4.1(b). "Effective Date" means the date on the last of the following to occur: (1) the Agreement is approved by the Board of Directors of Tenant; (2) the Agreement is approved by the Board of the Authority; (3) the Agreement is approved by the City Commission; and (4) the Agreement is executed by all parties. "Completion Date" means the date that the Heliport has obtained receipt of a Certificate of Occupancy in accordance with the Construction Documents and all "punch list" items have been corrected which shall occur not later than sixty (60) months after the Effective Date. "Conceptual Site Plan" shall mean the plans for the Subleased Premises as • depicted in Exhibit "C". "Construction Commencement Date" means the date that the Tenant shall have commenced construction of the Heliport, which shall be no later than twelve (12) months after the Effective Date, subject to Unavoidable Delays. "Construction Contract" shall have the meaning given to it in Section 6.1. 6 "Construction Documents" means the final working drawings and specifications for the Heliport, which shall include, without limitation: (a) definitive architectural drawings,. (b) definitive foundation and structural drawings, (c) definitive electrical and mechanical drawings, including plans for all exterior lighting facilities of the Subleased Premises, and (d) final specifications, landscaping and graphics. The Construction Documents shall also include a projected progress schedule for completion of the Heliport. "Construction Manager" means the entity selected and engaged by the Tenant, pursuant to the RFQ as hereafter defined, and subject to the approval of the Authority, the City and any other granting agencies. The Construction Manager will be the general contractor for the Heliport and will provide construction management services for a negotiated fee under a guaranteed maximum price contract for the Heliport, which services will include, at a minimum, value engineering, design review, constructability analyses, bidding and supervision of all construction activities, cost control to insure that the Heliport is completed at or below the guaranteed maximum price, and all tasks normally associated with construction management services contracts. "Cost Estimate" means the cost estimate as approved by the City Manager, the Executive Director of the Authority, and FDOT if necessary, and prepared by the Architect for the Subleased Premises as depicted in Exhibit "D", which estimate shall be updated with each set of Plans submitted by the Architect to the City Manager and the Executive Director of the Authority. "DERM" means the Department of Environmental Resources of Miami -Dade County. "Design Development Plans" means the Plans and specifications for the Subleased Premises to be prepared by the Architect and approved by the Parties. "Disbursement Procedures" means the procedures governing the disbursement of funds for the construction of the Subleased Premises, as may be further defined from time to time as accorded with other granting agencies. "Environmental Law" includes without limitation the Resource Conservation and Recovery Act, the Comprehensive Environmental Response Compensation and Liability Act and other federal laws governing the environment as in effect on the Effective Date, together with their implementing regulations, guidelines, rules or orders as of the Effective Date, and all state, regional, county, municipal and other local laws, regulations, ordinances, rules or orders that are equivalent or similar to the federal laws recited above or that purport to regulate Hazardous Materials. "Event of Default" shall have the meaning set forth in Section 11.1. "FAA" means the Federal Aviation Administration. 7 "FDOT Requirements" means all the requirements imposed by FDOT under the JPA with respect to the construction of the Subleased Premises as a condition to FDOT's reimbursement of the City's Construction Contribution. "Federal Inspection Services" means the services provided by the United States departments of Customs, Immigration and Agriculture to the Airside Area. "Hazardous Material means any substance or material defined or designated as a hazardous or toxic waste material or substance, or other similar teiiii by any Environmental Law. "Heliport" means the structure and all real property improvements to be constructed by the tenant on the Subleased Premises to house the terminal facilities, the Federal Inspection Services areas, the landing pads, the fuel farm, and if needed, any parking pads. "Insurance Trustee" means , the escrow agent selected by the Tenant and approved by the City and the Authority to hold insurance proceeds if they become available pursuant to Article VII hereof "Interlocal Agreement" shall have the meaning set forth in the recitals. "JPA" shall have the meaning set forth in the recitals, and as depicted in Exhibit «J» "Legal Requirements" means applicable laws, statutes, codes, city and county ordinances, orders, judgments, decrees and injunctions from courts having jurisdiction over the construction and operation of the Heliport, including specifically, rules and requirements of state and local boards and agencies with jurisdiction over the construction of the Heliport, now existing or hereafter enacted, adopted, foreseen and unforeseen, ordinary and extraordinary, which may be applicable to the Heliport or any part thereof "Material Change" means any change to the Construction Documents which would individually increase the cost of construction by more than fifty -thousand dollars ($50,000), impact the structural integrity of the Heliport or substantially impact the architectural appearance of the Subleased Premises, as determined by the City's Planning Department. "Other Agreements" means the Interlocal Agreement and the Sublease. "Parties" means the City, the Authority and the Tenant collectively. "Plans" mean the Design Development Plans, together with all other plans to be developed by the Architect and submitted by the Tenant to the City and the Authority for its review and approval in accordance with the terms set forth herein. Such Plans will 8 include the schematic design documents, the design development documents and the Construction Documents. "Project Cost" means the cost of constructing the Heliport. "Project Inspector" means the architect or engineer engaged by the City, if any, to inspect the progress of the Heliport for the benefit of the City and the Authority. "Property" shall have the meaning set forth in the recitals. "Rent" shall have the meaning given to it in the Sublease. "Review Period" means the period beginning on the Effective Date and ending ninety (90) days thereafter. "RFO" means the Request for Qualifications for a Construction Manager at Risk to be issued by the Tenant seeking a Construction Manager at Risk to oversee and manage the construction of the Heliport, subject to approval by the City Manager and the Executive Director of the Authority, and as required by the JPA. "Sublease" shall have the meaning set forth in the recitals. "Substantial Completion" shall have the meaning set forth in Section 6.. "Surviving Obligations" means those obligations which by their terms expressly survive the termination of this Agreement. "Tenant's Construction Contribution" shall have the meaning set forth in Section 4.1(a). "Tenant Improvements" means the installation of any furniture, furnishings, equipment and any other personal property for use by the Tenant, the City or any other Subtenant as defined in the Sublease Agreement. "Term" shall have the meaning set forth in Section 2.2. "Unavoidable Delay" means strikes, lockouts, acts of God, inability to obtain labor or materials or settle insurance claims due to governmental restrictions, acts of war, enemy action, civil commotion, fire, hurricane, flood, casualty, failure or delay of a governmental entity to approve of any actions or documents, or other similar causes beyond the reasonable control of a party (not including such party's insolvency or financial condition). An event of Unavoidable Delay may extend the time for performance under this Agreement for up to 90 days, as set forth in Section 11.4. Section 1.2 Controlling Provisions. In the event of a conflict between the provisions of this Agreement and the provisions of the Sublease with respect to the 9 development of the Heliport (as compared to its operation), the provisions of this Agreement shall control and shall operate to supersede or amend the conflicting provision or provisions of the Sublease Agreement. 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 Plans, with the final Construction Documents controlling over the previous Plans; and (4) the other exhibits to this Agreement. Section 1.3 Exhibits. The exhibits attached hereto are incorporated herein by this reference. Section 1.4 Recitals. The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. ARTICLE II PURPOSE, TERM AND AUTHORITY Section 2.1 Purpose. The purpose of this Agreement is to establish the Parties' obligations with respect to the development and construction of the Heliport and the financial contribution of the Tenant. Section 2.2 Term. The term of this Agreement will commence on the Effective Date and unless earlier terminated in accordance with the terms hereof shall end upon the Completion Date (the "Term"). Section 2.3 Authority. The City and the Authority each represent, covenant and warrant to the Tenant that it has a valid right and authority to enter into the Interlocal Agreement, this Agreement and the Sublease (as applicable). The Tenant represents covenants and warrants to the City and the Authority that it has a valid right and authority to enter into this Agreement and the Sublease. ARTICLE III CITY'S RESPONSIBILITIES Section 3.1 Environmental. The City shall have a period of ninety (90) days from the Effective Date in which to perform a Phase I Audit of the Subleased Premises and deliver to the Tenant a report thereof (the "Phase I Audit"). If the Phase I Audit shows any conditions which could potentially violate Environmental Laws (the "Environmental Conditions"), then the City, the . Authority and the Tenant shall each have the right to terminate this Agreement by giving to the other Parties written notice of its intent to terminate within seven (7) calendar days after receipt of the Phase I Audit, whereupon this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released from all further responsibilities hereunder and under the Sublease, except for the Surviving Obligations. If this Agreement is not terminated by the Tenant, as herein provided, then the Tenant shall be solely responsible for the remediation for the Environmental Conditions including all costs, in strict compliance 10 with all applicable Environmental Laws. In such event, the Tenant shall be deemed to accept the Subleased Premises in its existing condition and agrees not to bring any actions against, and shall release the City and the Authority from, any and all claims and obligations in connection therewith. The Tenant shall submit to the City an Environmental Acceptance Certificate attached as Exhibit "K", accepting the Phase I Audit of the Subleased Premises. ARTICLE IV CONSTRUCTION EXPENSES Section 4.1 Construction Expenses. All costs incurred in the construction of the Heliport shall be paid as follows: (a) By the Tenant: The "Tenant's Construction Contribution" which amount shall be equal to Three Hundred Fifty Thousand Dollars ($350,000); provided, however, that, subject to the terms of this Agreement, the Tenant shall be solely responsible for all construction costs of the Heliport after the City has contributed the City's Construction Contribution. (b) By the City: The City shall make available to the Tenant any grant funds received from FDOT, FAA, or other granting agencies only for the purpose of funding the construction of the Heliport ("City's Construction Contribution"). (c) The Tenant shall provide to the City Manager and Executive Director of the Authority evidence reasonably satisfactory to both parties of Tenant's financial ability to construct the Heliport, which the City and MSEA shall approve. Section 4.2 Method of Payment for Construction Expenses. The Tenant shall fund the Tenant's Construction Contribution and, if available, the City shall fund the City's Construction Contribution to the Escrow Agent, for further disbursement in payment of Project Costs, in accordance with the terms of the Disbursement Procedures. The Construction Manager's requisitions for payment (AIA Document #G702), or a separate certification prepared by the Architect, shall detail the percentage of the work covered by such requisitions. The City and the Tenant shall ensure that each requisition for payment shall include generally: total Project Cost, the schedule of values contained within the construction budget, change orders to date, the amount of the payment request, and project balance. The requisition for payment shall be accompanied by the lien waivers, releases, affidavits, certifications and other documentation that may be required from time to time by any granting agencies. All requisitions for payment must be approved by the Tenant and the City Manager, which approval shall not be unreasonably withheld or denied. The City Manager shall approve or reject each requisition for payment within ten (10) business days following receipt of same. If the 11 City Manager rejects any requisition for payment, the City Manager shall provide sufficient detail, in writing, setting forth the reasons for rejecting same. If the City Manager fails to approve or reject the requisition for payment within such ten (10) day period, the City Manager shall be deemed to have approved same. Section 4.3 FDOT Funding. The Parties acknowledge that the City's Construction Contribution shall be reimbursed from any and all available funding received from FDOT pursuant to the requirements stipulated in the JPA. The City shall be solely responsible for providing any and all applications and requests for any eligible reimbursement related to the Heliport from FDOT pursuant to those conditions as more clearly defined in the JPA. The Tenant shall provide to the City any and all back-up or supporting information related to the Heliport construction costs which are the subject of such reimbursement pursuant to the deadline dates as more clearly defined in the JPA. The City shall fund the City's Construction Contribution pursuant to those conditions stipulated in the JPA and the Disbursement Procedures, respectively; provided, however, that if FDOT shall fail or refuse to reimburse any sums which are reimbursable under the JPA for any reason (other than the City's failure to comply with the terms of the JPA) for a period exceeding 180 days, then the City's obligation to fund the City's Construction Contribution shall cease until FDOT shall recommence reimbursements under the JPA, whereupon the City's funding obligations shall likewise automatically recommence. The City shall apply for on a timely basis and diligently pursue extensions. under the JPA which are scheduled to expire prior to Substantial Completion of the Heliport. Section 4.4 Additional Funding. Because of the limited funding currently available to the City from FDOT, the Authority and other sources, the Parties have agreed initially to limit the City's and MSEA's financial contribution to those amounts received from the granting agencies for the construction of the Heliport. In the event that additional funds may become available during the course of construction of the Heliport, the City shall immediately notify the Tenant, the Authority and the Escrow Agent of same, and this Agreement shall be deemed automatically amended to increase the additional funding amount. The use of the additional funds shall be subject to City approval. ARTICLE V PLANS AND CONSTRUCTION DOCUMENTS Section 5.1 Design Development Plans and Preliminary Cost Estimate. The Parties hereby agree that the Design Development Plans for the Subleased Premises and the Preliminary Cost Estimate shall be subject to the approval of the City and the Authority and shall be attached to this Agreement by an amendment hereto. The City shall be responsible for obtaining the approval of the FAA, FDOT and the Federal Inspection Services, if required. The Tenant shall be responsible for obtaining approval of all other applicable governmental authorities, and by any other parties with approval rights, including without limitation, DERM. The Design Development Plans shall form the basis for the schematic design and subsequent Construction Documents. The Preliminary Cost Estimate shall be subject to approval by FDOT. 12 Section 5.2 Plans and Cost Estimate. The Tenant shall cause the Architect to submit to the Tenant, the City, and the Authority simultaneously Plans at the 30% complete, 60% complete and 90% complete stages of the design of the Subleased Premises. The City shall be responsible for obtaining approvals of all submittals from the FAA, the Federal Inspection Services and any other party, if such approval is required for the City to receive funding for the Heliport or otherwise required under any other agreement binding the City as it relates to the construction of the Heliport. Upon receipt of each set of revised Plans hereunder, the City agrees to coordinate a project meeting among the City, the Authority, the Tenant, the Architect, and the Federal Inspection Services to review the Plans with the Architect and discuss any issues or concerns of any such parties relating to the Plans. Such meetings are intended only to facilitate the Plan approval process and shall not create or enlarge any rights that any such parties may have under their respective agreements relating to the Subleased Premises. With each set of Plans, the Tenant shall also cause the Architect to submit to the City a revised Cost Estimate for the Subleased Premises. If the revised Cost Estimate exceeds the most recent Cost Estimate for the Subleased Premises, then, unless the Tenant has agreed to assume full responsibility for payment of all additional costs, the revised Cost Estimate shall be subject to reasonable approval by the City, the Authority, and the Tenant within forty-five (45) days from the date such Cost Estimate is received by each party. Section 5.3 Plan Approval Process. In their capacity as owner of the Subleased Premises and prime landlord, the City Manager and the Executive Director of the Authority shall have the right to review and approve all Plans for the Heliport, which approval shall not be unreasonably withheld or conditioned, and provided that once a set of Plans are approved, neither the City Manager nor the Executive Director of the Authority shall have no right to raise as an objection or reason for disapproval in any subsequent Plans any matters whichsubstantially conform to previously approved Plans. The City Manager and the Executive Director of the Authority shall have a period of forty-five (45) days after the receipt of the proposed Plans to advise the Tenant, in writing, of its approval or disapproval of same. If no written disapproval is provided to the Tenant within said forty-five (45) day period, then the Plans in question shall automatically be deemed approved by the City Manager and the Executive Director of the Authority, in their capacity as owner of the Subleased Premises and Leaseholder of the Subleased Premises and not as a governmental entity. In the event the City Manager or the Executive Director of the Authority disapproves any part or all of the Plans submitted by the Tenant, the City Manager or the Executive Director of the Authority shall include in its written notification the specific reasons for disapproval and the steps necessary to correct same. In the event of a proper disapproval of which the Tenant is timely notified, the Tenant shall resubmit the Plans (as applicable) to the City Manager and the Executive Director of the Authority revised to cure the ground of the disapproval. Any resubmission shall be subject to review by the City pursuant to the foregoing plan approval process (except that the City and the Authority shall have twenty (20) days, rather than forty-five (45) days, to review same) until the same shall be finally approved by the City and the Authority. 13 The City, the Authority and the Tenant shall attempt to resolve any disputes concerning the Plans in good faith and the City or the Authority shall not unreasonably withhold or condition its consent to any such requested approval. In the event the Parties are unable to resolve a dispute with respect to any Plans, the matter shall be resolved in Arbitration. The Tenant acknowledges that any Plan approval given by the City or the Authority shall not constitute an opinion by the City or the Authority that the Plans are structurally sufficient or in compliance with any Legal Requirements; however, such approval by the City shall confirm that the City has obtained the necessary approvals from the FAA and any other entity whose approval is required for the City to receive funding for the Heliport. The Plans as finally approved by the City and the Authority shall be included in the Construction Documents, shall be initialed by the City, the Authority, and the Tenant and shall be and are incorporated into this Agreement as Exhibit "L" by this reference. Section 5.4 Project Inspector. The City Manager may, by written notice to the Tenant, designate a Project Inspector to review the Plans for the Heliport, the progress of construction and requisitions for payment on behalf of the City and the Authority, in lieu of the City under Articles V and VI of this Agreement. Upon receipt of such notice, the Tenant shall coordinate the approval of the Plans, construction matters and requisitions with the Project Inspector unless otherwise directed in writing by the City Manager. If the City Manager does not designate a Project Inspector, then the City Manager shall designate in writing a representative at the City who, at a minimum, shall be available to the Tenant during normal business hours to respond to design development, construction and funding issues. The Tenant shall be responsible for all costs associated with the Project Inspector. Section 5.5 Conformity with Legal Requirements. The Tenant shall ensure that the Plans and the Construction Documents and all work performed by the Tenant with respect to the Heliport and the construction thereof, shall be in conformity with this Agreement, and all applicable Legal Requirements. The Tenant shall ensure that any work not performed in compliance with the Plans and Construction Documents shall be promptly corrected, replaced, or brought into compliance at no expense to the City or the Authority. Notwithstanding any failure by City to object to any such defective work, neither the City nor the Authority shall have any responsibility therefor. Section 5.6 Permits and Approvals. The Tenant shall be responsible for securing all Approvals when required for the construction and completion of the Heliport (other than the approvals of the Plans from the FAA, which is the sole responsibility of the City hereunder); provided, however, the Tenant shall not be responsible for any delay or failure of any applicable governmental authority to provide an Approval when the delay is not caused by the Tenant. The cost of obtaining the required permits and Approvals shall be part of the construction costs and shall be paid for in accordance with Section 4.1 of this Agreement. Upon the Tenant's request, the City shall cooperate with and provide all assistance in connection with the Tenant's efforts to obtain the necessary Approvals for the Heliport. 14 ARTICLE VI CONSTRUCTION OF SUBLEASED PREMISES Section 6.1 Procurement of Construction Services. The Tenant shall procure construction management services, and select the Construction Manager and negotiate and execute a contract for a construction manager at risk with a guaranteed maximum price (the "Construction Contract") substantially in the Rhin of the agreement attached to the RFQ. The procurement of construction management services hereunder, and the contracts resulting therefrom shall be in compliance with all Legal Requirements. The solicitations for bids and the Construction Contract shall incorporate the necessary provisions to establish a satisfactory mechanism for payment of the construction costs consistent with the Disbursement Procedures and any amendments thereto that may be required from time to time by funding sources or granting agencies. Section 6.2 Construction of the Project. The Tenant shall be entitled to commence construction of the Heliport once the Construction Documents have been initialed by the City Manager and the Executive Director of the Authority and approved by FDOT and the FAA (as may be required by the JPA or other agency approval requirements), and the Tenant has obtained the Approvals required for the applicable stage of construction. The Tenant shall provide the City all documentation required for FDOT approval of the Construction Documents for funding reimbursement purposes if such approval is required under the JPA. The Tenant shall be responsible for the construction of the Heliport in accordance with the approved Construction Documents, as they may be amended from time to time, in accordance with the provisions of this Agreement. During the construction of the Heliport, the work of the Tenant shall be available for inspection at reasonable times by the City and the Authority, provided that the Tenant is given reasonable advance written notice thereof and such inspection does not interfere with the progress of the. Construction Manager's construction. work. Section 6.3 Phased Construction. The City, at Tenant's request, and with FDOT's approval, may allow the Heliport to be constructed in phases as follows: (a) Phase I: Shall include the landing and parking pads in order to allow for the Heliport to be operational and shall be completed no later than eighteen (18) months from the Effective Date. (b) Phase II: Shall include the fuel farm and shall be completed no later than twenty-four (24) months from the Effective Date. (c) Phase III: Shall include the hangar building and terminal facility and shall be completed no later than sixty (60) months from the Effective Date. Section 6.4 Progress Reports and Construction Meetings. During the construction of the Heliport, the Tenant shall provide to the City, at the time of each 15 requisition for construction costs, (i) a certificate from the Architect certifying that those portions of the Heliport completed, for which requisitions for payment have been issued, are in substantial accordance with the Construction Documents, and (ii) progress reports detailing the progress of the construction of the Heliport. The Tenant and the City or the Project Inspector shall consult on a regular basis (but no more frequently than monthly unless the Parties otherwise agree) to address any issues pertaining to the confoiniance of the work to the Construction Documents, proposed or potential change orders, and other matters pertaining to the construction, occupancy and operation of the Heliport. Section 6.5 Completion of Heliport. (if applicable) Upon Substantial Completion (as defined below) of each phase of the Heliport, the City and Tenant, with the assistance of the Project Inspector (if designated), shall provide a "punch list" identifying the corrective work of the type commonly found on an architectural punch list with respect to such phase of the Heliport. Within thirty (30) days after delivery of each punch list, the Tenant shall cause the Construction Manager to commence correction of punch list items and diligently pursue such work to completion. The aforementioned punch list procedure for the Building phase shall in no way limit the Tenant's obligation to occupy the Subleased Premises as defined in the Sublease, unless such punch list items preclude the Tenant from obtaining a temporary certificate of occupancy for the Subleased Premises. Section 6.6 Substantial Completion. The Tenant shall exercise commercially reasonable efforts to cause the Construction Manager to substantially complete the Heliport on or before the Completion Date, subject to Unavoidable Delays or delays caused by any Subtenant as defined in the Sublease, provided, however, that in no event shall any of the aforementioned delays cause the Completion Date to be extended beyond 24 months after the Effective Date. "Substantial Completion" or "Substantially Completed" as used herein shall mean, with respect to. each phase of construction, the Architect's certification and notice to the Tenant, the City, and the Authority of the completion of construction of such phase of the Tenant in accordance with the approved Construction Documents such that the applicable portion of the Heliport is suitable for its intended use, with the exception of minor details of construction installation, decoration, or mechanical adjustments and punch list items. Substantial Completion shall be deemed to have occurred, notwithstanding the requirement to complete "punch list" items or similar corrective work. Upon the Tenant's submittal of a certificate of Substantial Completion for the entire Subleased Premises, the City, should funding be made available from any grants received, and the Tenant shall each pay their respective share of the final payment due in accordance with the terms hereof and this Agreement shall automatically terminate. Section 6.7 Tenant Improvements. It is expressly understood that the provisions of this Agreement pertaining to construction and funding obligations are limited to the Heliport as defined and as specifically set forth in the Construction Documents. The design layout, provision, delivery, construction of tenant improvements shall be paid exclusively by the Tenant, the City and/or such Subtenant, as applicable. 16 Section 6.8 Ownership of Heliport. Upon expiration or termination of the Development Agreement or the Initial Term (as defined- in the Sublease Agreement), whichever occurs later, the City shall own the Heliport and Tenant shall assign and deliver to the City all documents to reflect such ownership. Section 6.9 Change Orders. All Material Changes in the construction of the Heliport shall be subject to the approval of the Tenant and the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed. Prior to commencing any Material Change in the work, the Tenant will cause the Construction Manager to prepare a change order (the "Change Order") setting forth the total costs of such change. If the Tenant and the City Manager do not approve such Change Order, the Tenant will not proceed to cause the requested change to be performed. The cost of any Change Order authorized pursuant to this Section shall be paid in the manner provided in Section 4.1 of this Agreement for the payment of construction costs of the Heliport; provided, however, that the City shall be solely responsible for the entire cost of Change. Orders requested by the City. Except for Material Changes, no other changes in the work or Change Orders shall require the City's approval and all such changes and Change Orders shall be included in the costs of the Heliport. Section 6.10 Liens. The Tenant shall not suffer or permit any liens of any kind to be filed against the title to the Subleased Premises or against city owned property as part of any development required for the operations of the Subleased Premises, or the Heliport, nor against the Tenant's interest in the Subleased Premises by any reason whatsoever including but limited to work, labor, services or materials supplied to the Tenant or anyone having a right to possession of the Subleased Premises or the Heliport as a result of an agreement with the Tenant or Internal Revenue Service or tax liens. Nothing in this Agreement shall be construed as constituting the consent or request of the City or the Authority, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or material man for the performance of any labor or the furnishing of any materials, for any specific work on the Subleased Premises or the Heliport nor as giving the Tenant the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics' liens against the Authority's or the City's interest in the Subleased Premises or the Heliport. If any liens shall at any time be filed against the Subleased Premises or the Heliport, the Tenant shall cause it to be discharged of record within thirty (30) days after the date the Tenant has knowledge of its filing. If the Tenant shall fail to discharge a lien within that period, then in addition to any other right or remedy, the City or the Authority may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court or bonding. The City or the Authority shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the mechanics' lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts paid by the City or the Authority shall be repaid to the City or the Authority by the Tenant immediately upon rendition of any invoice or bill. The Tenant shall not be required to pay or discharge any mechanics' lien so long as the Tenant shall in good faith proceed to contest the lien by appropriate proceedings and if the Tenant shall have given notice in writing to the City 17 and the Authority of its intention to contest the validity of the lien and shall furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. Neither the City nor the Authority shall be entitled to pay the lien or compel the prosecution of any action with respect thereto during any time that the Tenant is contesting such lien. ARTICLE IVII INSURANCE AND BOND REQUIREMENTS Section 7.1 Insurance. Prior to the commencement of any construction work on the Subleased Premises, the Tenant agrees to obtain, or require the Construction Manager and/or the Architect to obtain and maintain at all times during the Term, such insurance coverage, as described in Exhibit "E". Section 7.2 Named Insured. All policies of insurance required by this Article shall indicate as named or additional insureds the Tenant, the City, and the Authority, and, if required under the FDOT Requirements, FDOT or 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 Article. 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 and named insureds. All insurance policies hereunder shall be subject to the review and approval of the City and the Authority, which approval shall not be unreasonably withheld or delayed. Section 7.3 Insurance Does Not Waive Tenant's Oblinations. No acceptance or approval of any insurance hereunder shall relieve or release the Tenant from any liability, duty or obligation under this Agreement or the Sublease. Section 7.4 Proof of Loss. Whenever any part of the Heliport shall have been damaged or destroyed by fire or other casualty, the Tenant shall promptly make proof of loss 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 Tenant shall promptly give the City and the Authority written notice of any damage or destruction the Heliport. Section 7.5 Property Insurance Proceeds. (a) Authorized Pav ment. All sums payable for loss and damage arising out of the casualties covered by the property insurance policies shall be payable to the Insurance Trustee, to be disbursed to the Tenant pursuant to Subsection 7.5(b). (b) Disposition of Insurance Proceeds for Reconstructing. Subject to applicable FDOT requirements (if any), all insurance proceeds shall be used, to the extent required, for the reconstruction, repair 18 or replacement of the Heliport, so that the Heliport shall be restored to a condition comparable to the condition prior to the loss or damage (the "Reconstruction Work"). From the insurance proceeds received by the Insurance Trustee, there shall be disbursed to the Tenant such amounts as are required for the Reconstruction Work. The Tenant shall submit invoices or proof of payment to the Insurance Trustee for payment or reimbursement in accordance with an agreed schedule of values reasonably required to perfoiin the work. Any amount remaining in the hands of the Insurance Trustee after the completion of the Reconstruction Work, shall be disbursed to the Authority and the City subject to any rights of any Leasehold Mortgagee. Section 7.6 Covenant for Commencement and Completion of Reconstruction. Subject to the provisions of this Section, the Tenant 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 insurance proceeds have been received by the Insurance Trustee, subject to Unavoidable Delay), and to fully complete such Reconstruction Work as expeditiously and reasonably as possible. Section 7.7 Tenant's Option to Terminate. If (a) the insurance proceeds received are insufficient to complete the repairs, or (b) the Tenant is unable to obtain all of the governmental approvals required under Legal Requirements for the reconstruction of the Heliport, then, in any of such events, the Tenant may elect to terminate this Agreement and the Sublease by giving to the City and the Authority notice of such election within ninety (90) days after the occurrence of the loss or damage. If such notice is given, the rights and obligations of the Parties under this Agreement and the Sublease 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. Section 7.8 Waiver of Subrogation Rights. Anything in this Agreement to the contrary notwithstanding, the City, the Authority and the Tenant 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 Subleased Premises and/or any improvements from time to time existing thereon, or to any portion or portions thereof, or to any personal property or Tenant Improvements 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 Tenant shall obtain an endorsement to all insurance policies to effect the provisions of this Section, provided that such endorsements are available at no additional cost. 19 Section 7.9 Payment and Performance Bonds. Prior to the commencement of any construction work on the Subleased Premises, the Tenant agrees to require the Construction Manager to provide payment and perfoiiiiance bonds in compliance with Section 255.05 Florida Statutes (modified, if possible, to protect the Tenant's leasehold interest under the Sublease in addition to the City's and Authority's interests in the Subleased Premises), issued by Florida licensed surety companies and subject to the City Attorney's approval. Said Bonds shall remain in force and effect throughout the entirety of the construction of the Heliport and will identify the City and the Authority as dual obligees. Copies of the payment and performance bonds will be provided to the City and the Authority prior to the commencement of construction. An example of said payment and performance bond is attached hereto as Exhibit "F". ARTICLE VIII CONDITIONS PRECEDENT Section 8.1 Re' iew Period Conditions. The Tenant's obligations under this Agreement shall be subject to the satisfaction of the following conditions within the Review Period: (a) (b) (c) The City shall have provided to the Tenant or the Tenant shall have obtained from other sources satisfactory evidence that utility services sufficient to satisfy the requirements of applicable regulatory authorities for the development of the Heliport are available at the Subleased Premises (or will be available at the time of Substantial Completion), with sufficient capacity to service the Heliport. Such evidence must be in writing and may consist of letters from the applicable utilities confirming availability and capacity. The Tenant shall have received a current commitment for title insurance, from a recognized commercial title insurance company authorized to issue title insurance in the State of Florida agreeing to insure the Tenant's leasehold estate under the Sublease, free of exceptions that would, in the reasonable opinion of the Tenant, prevent the Tenant from constructing the Heliport in accordance with the Plans. The title commitment shall reflect that the portions of the road commonly known as folnner AIA which transverse the Subleased Premises have been conveyed by FDOT to the City. The Tenant shall have confirmed, based upon the survey previously provided to the Tenant by the City or an update thereto or any additional surveys obtained by the Tenant, that the Subleased Premises is free of encroachments or conditions that would prevent the Tenant from constructing the Heliport in accordance with the Plans. The survey shall be certified to the Tenant, the Authority, the City, FDOT and the Tenant's title insurer. 20 (d) Within ten (10) days after the Effective Date, the Tenant shall submit to the City evidence that it has the funds necessary to pay the Tenant's Construction Contribution, in a fouii acceptable to the City Manager. (e) (f) (g) FDOT shall have approved in writing: (i) the Development Agreement by and between the City of Miami, Miami Sports and Exhibition Authority and Linden Airport Services Corporation; (ii) any additional agreement(s) entered into for the development of the Heliport; (iii) the Plans; (iv) the Preliminary Cost Estimate for the Heliport; (v) the Disbursement Procedures, including the Disbursement Schedule, if required, and all other Exhibits attached thereto; and (vi) such other documents as may be required by FDOT's approval under the WA. The City shall have completed and delivered to Tenant the Phase I Audit and the parties have elected not to terminate this Agreement in accordance with Section 3.1 hereof. The FAA and FDOT shall have approved in writing the airport layout plan. (h) The Federal Inspection Services shall have approved in writing the Design Development Plans, if applicable. The Tenant agrees to deliver to the City and the Authority copies of all reports of all inspections conducted or obtained by the Tenant under this Section. Section 8.2 Failure of Review Period Conditions. In the event that one or more of the conditions set forth in this Section V are not satisfied by the end of the Review Period (or, if an earlier date is specified in Section 8.1 for satisfaction of such condition, then by such earlier date), then, subject to the provisions of Section 8.3 below, the Tenant shall have the right to terminate this Agreement by giving to the other Parties written notice of its intent to terminate not later than 5:00 p.m. of the next business day following the expiration of the Review Period, in which event this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released from all further obligations with respect thereto, except for the Surviving Obligations. Section 8.3 Title Defects. In the 'event that the title report or survey reveals any defects in title that prevent the construction of the Heliport in accordance with the Design Development Plans, then the Tenant shall provide the City written notice detailing the nature of the defect(s), not later than 5:00 p.m. of the next business day following the expiration of the Review Period. If the Tenant fails to object, in writing, to any particular condition of title or matter of survey prior to 5:00 p.m. on such date, then the Tenant shall be deemed to have waived such condition of title. In the event that the Tenant timely objects to any conditions of title or matter of survey, the City shall be under no obligation to cure any such title or survey defect(s). If the City elects, in its 21 sole discretion, to attempt to cure such defect(s), it shall not be obligated to bring any action or proceeding to eliminate such title objection or expend any money to eliminate any title objection. In the event that a properly noted title or survey defect is not cured within ninety (90) days after the City's receipt of the Tenant's notice thereof (the "Cure Period"), then the Tenant may, at its option, (i) cancel this Agreement, in which event this Agreement and the Sublease shall be of no further force and effect and the Parties shall be released from all further obligations with respect thereto, except for the Surviving Obligations; or (ii) accept the condition of title or survey for all purposes under this and the Sublease. If the Tenant elects to cancel this Agreement in accordance with this provision, then it shall give the other Parties written notice of its intent to terminate not later than 5:00 p.m. of the tenth (10th) Business Day following the expiration of the Cure Period. Notwithstanding the foregoing, the Tenant acknowledges the Seaplane Base occupancy of a portion of the Property dedicated to a Seaplane Base operations, and that the Seaplane Base will continue to occupy such portion of the Property during the construction of the Heliport. The City and the Authority agree to take all reasonable steps to ensure that the Seaplane Base occupancy of the Property shall not interfere with the construction of the Heliport. The Tenant agrees that the Seaplane Base presence on the Property shall not constitute a title defect under this S ection. ARTICLE IX OTHER TERMINATION RIGHTS Section 9.1 Notice of Tennination. In order to exercise the right to terminate under this Article, the terminating party shall give written notice to the other Parties of its intent to terminate within five (5) Business Days following the receipt of notice or obtaining knowledge of the occurrence of the event that triggers the right to terminate, pursuant to Article XIII, Notices, hereunder. Section 9.2 Effect of Termination. Upon termination of this Agreement pursuant to this Article, this Agreement and the Sublease shall be of no further force and effect and the Parties shall be -released from all further responsibilities hereunder and under the Sublease, except for the Surviving Obligations. Section 9.3 Relinquish due to Tenunation. In the event of and upon termination of this Agreement, Tenant shall relinquish and convey the Subleased Premises to the City. ARTICLE X INDEMNIFICATION The Tenant shall indemnify, protect, defend and hold harmless the Authority and the City, their officials and employees, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of its performance under this Agreement, including specifically, without limiting the generality of the foregoing, compliance with Legal Requirements, whether such claim shall be made by an employee or member of the Tenant, an employee of the Authority, an employee of the 22 City, or by any third party, and whether it relates to injury to persons (including death) or damage to property and whether it is alleged that the Authority or the City, or their employees or officials were negligent; provided, however, the Tenant shall not be responsible for any claims, suits, actions, damages, or causes of action arising out of the gross negligence or willful misconduct of the City or the Authority, or anyone acting by, through or under either of them. The Tenant shall, at its own cost and expense, pay and satisfy all costs related to any orders, judgments or decrees which may be entered thereon, and from and against all costs, reasonable attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof The Tenant shall further indemnify, defend, protect and hold the Authority and the City harmless from and against any and all claims arising from any breach or default in performance of any obligation of the Tenant's part to be performed under the terms of this Agreement, or arising from any act, fault or omission of the Tenant, its members, agents, contractors, employees and servants and from and against all costs, reasonable attorneys' fees, expenses and liability incurred in connection with such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against the Authority and/or the City by reason of any claim, the Tenant upon notice from the Authority or the City shall defend the same at the Tenant's expense by counsel approved in writing by the Authority and the City, subject to the City Attorney's approval, which approval shall be in the City Attorney's sole discretion. The Authority and the City reserve the right to defend themselves, provided that in actions against both, they use the same counsel, if no conflict prevents it, and the fees charged by counsel selected are reasonably acceptable to the Tenant. The Tenant shall notify the Authority and the City, in writing, of any claim or action filed, of whatever nature, arising out of the use of the Subleased Premises under this Agreement by the Tenant, its agents, contractors or employees, which claim or action could result in liability for the City or the Authority, within five (5) days following receipt of notice of any such claim. ARTICLE XI DEFAULT Section 11.1 Events of Default. Each of the following events is defined as an "Event of Default": (a) The failure of a Party to pay any amount due under this Agreement when due, and the continuance of that failure for a period of thirty (30) consecutive days after written notice from a non -defaulting Party; (b) The failure of a Party to comply with any of the covenants, conditions and obligations under this Agreement and the continuance of that failure for a period of thirty (30) consecutive days after written notice from a non -defaulting Party specifying the failure; unless with respect to any default which cannot be cured at no fault of the defaulting party within such thirty (30) day period, the defaulting party, in good faith, promptly after receipt 23 of written notice, shall have commenced and continued diligently to reasonably prosecute all actions necessary to cure the default; (c) The filing of an application by the Tenant: (i) for a consent to the appointment of a receiver, trustee or liquidator of itself or all of its assets; (ii) of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they come due; (iii) of a general assignment for the benefit of creditors; (iv) of an answer admitting the material allegations of or its consenting to, or defaulting in answering, a petition filed against it in any bankruptcy proceeding; or (d) The entry of an order, judgment or decree by any court of competent jurisdiction, adjudicating the Tenant as bankrupt, or appointing a receiver, trustee or liquidator of it or of its assets, and this order, judgment or decree continuing unstayed and in effect for any period of one -hundred twenty (120) consecutive days. Section 11.2 Remedies in Event of Default by the Tenant. Provided that the City or the Authority are not in default under this Agreement, upon the occurrence of an Event of Default by the Tenant, the City shall have all rights and remedies existing at law or equity, including the right to specifically enforce the City's rights hereunder. Additionally, in the Event of Default by the Tenant, the. City and the Authority shall have the right to, notwithstanding the Tenant's Construction Contribution and any credit of same against Rent under the Sublease, (i) immediately terminate this Agreement and the Sublease, and assume of all the Tenant's responsibilities hereunder, and the Tenant shall, upon the City's written request, assign the Construction Contract and the Architectural Agreement to the City, whereupon the Tenant shall be relieved of all obligations thereunder, or (ii) unless otherwise provided herein, perform, on behalf of and at the expense of the Tenant, any obligation of the Tenant under this Agreement which the Tenant has failed to perfoiun, the cost of which, together with interest thereon at the rate of twelve percent (12%) from the date of such expenditure, shall be deemed additional rent under the Sublease and shall be payable by the Tenant to the City upon receipt of written notice from the City. Section 11.3 Remedies in Event of Default by the City and/or the Authority. In the Event of Default by the City and/or the Authority, the Tenant, to the fullest extent permitted by, law, shall have the right to pursue any and all remedies available at law or in equity, including the right to immediately terminate this Agreement and the Sublease, sue for and collect damages and to specifically enforce the Tenant's rights, and to enjoin the City and/or the Authority, as applicable. Section 11.4 Unavoidable Delay. The time for any Party's performance of the covenants, conditions or obligations of this Agreement shall be extended for the period of any Unavoidable Delay; provided, however that any Party seeking the benefit of Unavoidable Delay shall, within thirty (30) days after such Party shall have become aware of such Unavoidable Delay, give written notice to the other Parties of the 24 Unavoidable Delay and its reasonably estimated duration and further provided that in no event shall an Unavoidable Delay justify a delay in monetary obligations hereunder nor delay performance by a period in excess of ninety (90) days. Section 11.5 Obligations. Rights and Remedies Cumulative. The rights and remedies of the Parties, whether provided at 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 it, at the same or different times, of any other such remedies for the same default or for any other 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. Consent of the City or the Authority to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which the consent is given and shall not relieve the and from the obligation, wherever required under this Agreement, to obtain the consent of the City or the Authority to any other act or matter. Section 11.6 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 11.7 Termination due to Default. In the Event of Default by the Tenant, Tenant shall give up any and all rights to the Subleased Premises and shall convey the Heliport and all improvements to the City. ARTICLE XII ARBITRATION Section 12.1 Arbitrator(s). Any dispute hereunder which is expressly stated to be resolved under this arbitration provision, shall be referred to and exclusively and finally settled by binding arbitration, conducted in accordance with the American Arbitration Association ("AAA") Commercial Arbitration Rules (or similar successor rules thereto). The place of arbitration shall be Miami, Florida. In the event that either party calls for a determination in arbitration pursuant to the terms of this Agreement, the Parties shall have a period of ten (10) days from the date of such request to mutually agree on one arbitrator who, at a minimum, must be an attorney with at least fifteen (15) years experience practicing commercial real estate law (with significant experience in development projects) in Miami -Dade County, Florida. If the Parties fail to agree, each party shall have an additional ten (10) business days to each select an individual meeting the same minimum qualifications set forth above, and the two arbitrators selected shall select a third arbitrator to be the arbitrator for the dispute in question. If the two 25 arbitrators selected shall fail to select a third arbitrator within ten (10) business days, the third arbitrator shall be selected by the AAA pursuant to the qualifications set forth herein. If either party fails to make its respective selection of an arbitrator within the additional ten (10) business day period provided for above, then the other party's selection shall be the arbitrator. Section 12.2 Arbitration Process. The arbitrator(s) shall decide the issues submitted to him/her in accordance with (i) the language, commercial purpose and restrictions contained in this Agreement (including exhibits hereto, if any) and (ii) all issues shall be determined under the laws of the State of Florida. With respect to any arbitration proceeding hereunder, the following provisions shall apply: (e) (f) (g) The Parties shall produce all requested documents within fifteen (15) business days of receiving the request. The period during which a party may requestdocuments shall end ninety (90) calendar days after final selection of the arbitrator(s). The arbitrator(s) conducting any arbitration shall be bound by the provisions of this Agreement and shall not have the power to add to, subtract from or otherwise modify such provisions. The Parties renounce all recourse to litigation with respect to the matters in this Agreement which direct the dispute in question to be resolved under this arbitration provision, and agree that, with respect to such matters only, the ruling and award (if any) of the arbitrator(s) shall be conclusive, final and binding upon the Parties, and shall not be subject to judicial review. Judgment on the award of the arbitrator may be entered in any court having jurisdiction over the party against which enforcement of the award is being sought, and any party may institute judicial proceedings to compel arbitration in accordance with the provisions hereof. (h) Each party shall be responsible for its own costs and expenses incurred in the arbitration, including attorneys' fees and the fees of the arbitrator selected by it (if more than one is used), but the costs of the arbitration itself and the cost of the third arbitrator shall be shared equally by the Parties. ARTICLE XIII NOTICES Section 13.4 Notice. Any notice or communication under this Agreement shall be in writing and shall be deemed sufficiently given if hand delivered or dispatched by United States certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, to the appropriate party or entity at the address 26 specified below or at such other address of which the other party shall be duly notified in writing: (a) In the case of a notice or communication to the Tenant, to: Attention: With a copy to: Attention: (b) In the case of a notice or communication to the Authority, to: (c) Miami Sports and Exhibition Authority 301 North Biscayne Blvd. Miami, Florida 33132 Attention: Executive Director With a copy to: City Attorney City of Miami Miami Riverside Building, 9tb Floor 444 S.W. 2nd Avenue Miami, Florida 33130 A duplicate copy of each notice given by any party to this Agreement to the other shall also be delivered to the City at the following addresses: City of Miami Attention: City Manager Miami Riverside. Building, loth Floor 444 S.W. 2nd Avenue Miami, Florida 33130 City Attorney City of Miami Miami Riverside Building, 9th Floor 444 S.W. 2nd Avenue 27 Miami, Florida 33130 Director of Public Facilities Department of Public Facilities City of Miami Miami Riverside Building, 3rd Floor 444 S.W. 2nd Avenue Miami, Florida 33130 All notices shall be deemed received when actually delivered if delivered by hand or by a nationally recognized overnight delivery service and shall be deemed delivered five (5) days following mailing in the event mailed as provided above. All notices of approval, disapproval or default to be given under this Agreement must be in writing and must be given as provided in this Section. ARTICLE VIIV MISCELLANEOUS PROVISIONS Section 14.1 Non-Assinnable. This Agreement may not be assigned by any of the Parties hereto without the written consent of all of the other Parties, which consent may be withheld in the Parties' discretion. Section 14.2 Successors and Assigns. All of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Section 14.3 Amendments. No amendment to this Agreement shall be effective unless it is in writing, signed by the City Manager, the Executive Director of the Authority and the Tenant. Section 14.4 Governing Law. This Agreement shall be construed and enforced according to the laws of the State of Florida. Section 14.5 Waiver of Jury Trial. The Parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right they may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out o f under or in connection with this Agreement or any amendment or modification hereof. This waiver of jury trial provision is a material inducement for the Parties hereto entering into the transaction contemplated in this Agreement. Section 14.6 Severability. If any provision of this Agreement, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Agreement shall be construed as if such invalid part were never included herein. The Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. 28 Section 14.7 Time of Essence. Subject to any extensions expressly provided with respect thereto, time is of the essence as to the performance of the provisions of this Agreement. Section 14.8 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 this Agreement or the intent of any provisions thereof. Section 14.9 Obligations Survive Termination. All obligations of either party hereunder not fully perfoinied as of the expiration or earlier termination of the term of this Agreement shall survive the expiration or earlier termination of the terra hereof, including, without limitation, all payment obligations. Section 14.10 Approvals, Consents and Representatives. Wherever in this Agreement the approval or consent of any party is required, it is understood and agreed that unless specifically stated to the contrary, such approval or consent will not be unreasonably withheld, conditioned or delayed. Wherever in this Agreement the approval or consent of the Authority or the City, or both, is required, the written approval or consent of the matter in question by the City Manager or Executive Director, as allowed by legal requirements or other City policy, shall satisfy the requirement for approval or consent of the Authority and the City (as applicable) for all purposes. All inquiries, requests, instructions, authorizations and other communications with respect to matters covered by this Agreement from the Tenant to the Authority or the City will be made to City Manager or Executive Director, and if the inquiry relates to a construction matter, to the Project Inspector (if one is designated) or the individual designated in Section 5.4 if no Project Inspector has been designated. Wherever in this Agreement the approval or consent of the Tenant is required, the written approval or consent of the matter in question by shall satisfy the requirement for approval or consent of the Tenant for all purposes. All inquiries, requests, instructions, authorizations and other communications with respect to matters covered by this Agreement from the Authority or the City to the Tenant will be made to the representative of the Tenant set forth in this paragraph. Section 14.11 Entire Agreement. This Agreement, and all exhibits attached hereto, represents the total agreement between the Parties with respect to the subject matter hereo f IN WITNESS WHEREOF, the Parties hereto have individually, through their proper officials, executed this Sublease the day and year first herein above written. 29 As to the Tenant: LINDEN AIRPORT SERVICES CORPORATION, d/b/a , A Florida Corporation ATTEST: By: By: Print Name: Paul P. Dudley, President Title: ATTEST: As to the Authority: MIAMI SPORTS AND EXHIBITION AUTHORITY By: By: Print Name: Print Name: Kirk Menendez Title: Title: Executive Director 30 CONSENT AND JOINDER OF CITY OF MIAMI The Undersigned hereby executes this Consent and Joinder for the purpose of consenting to and approving the terms of the foregoing Development Agreement, and joining into all of the terms of thereof applicable to the City, as of this day of , 2012. CITY OF MIAMI, a municipal corporation of the State of Florida ATTEST: By: By: Priscilla A. Thompson, City Clerk Johnny Martinez, P.E., City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS REQUIREMENTS Julie O. Bru, City Attorney Calvin Ellis, Director of Risk Management 31 EXHIBIT "A" LEGAL DESCRIPTION AND SURVEY OF PROPERTY WIDENER SURVEYING AND MAPPING PA 10416 H.W. 31at TERRACE Miami, Florida 33172 (305) 599-6381 LEGAL DESCRIPTION FOR MSEA # 1 PORTIONS OF TRACT D, WATSON ISLAND -SOUTHWEST. AS RECORDED IN PLAT BOOK 166 AT PAGE 11 OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHWEST CORNER OF SAID TRACT D; THENCE S17'12'21 "E ALONG THE WESTERLTY LINE OF SAID TRACT D FOR 367.59 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 300.00 FEET; THENCE ALONG THE WESTERLTY LINE OF SAID TRACT D SOUTHEASTERLY 15.67 FEET THROUGH A CENTRAL ANGLE OF 2159'34" TO THE POINT OF BEGINNING OF A PARCEL OF LAND HEREINAFTER DESCRIBED. THENCE N52132'22"E FOR 203.27; THENCE N47'07'29"E FOR 78.16 FEET; THENCE S42152'31 "E FOR 114.31 FEET; THENCE S44'28'41 'E FOR 165.00 FEET, THENCE S52' 14'06"E FOR 90.00 FEET; THENCE S64'58'36"E FOR 232.65 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 25.00 FEET; THENCE SOUTHEASTERLY 13.59 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 31'08' 17" TO THE POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 240.00 FEET; THENCE SOUTHEASTERLY 223.76 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 53'25'05"; THENCE S25'01'24"W FOR 198.84 FEET; THENCE N64'58'36"W ALONG THE SOUTHWESTERLTY LINE OF SAID TRACT D FOR 720.94 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 300.00 FEET; THENCE ALONG THE WESTERLY LINE OF SAID TRACT D NORTHWESTERLY 234.46 FEET THROUGH A CENTRAL ANGLE OF 44'46'41" TO THE POINT OF BEGINNING. SAID LANDS BEING SITUATED ON WATSON ISLAND, CITY OF MIAMI, MIAMI DADE COUNTY, FLORIDA. CONTAINING 4.81 ACRES MORE OR LESS (209,581 SQUARE FEET). THIS IS NOT A SURVEY, NOT VALID WITHOUT THE SIGNATURE AND ORIGINAL RAISED SEAL OF A FLORIDA PROFESSIONAL SURVEYOR AND MAPPER. DATE PREPARED: APRIL 27, 2007. PREPARED FOR THE CITY OF MIAMI. REVISED: MAY 8, 2007. Wendener Sury & Mapping, P.A. Florid.a Certification No. LB 4207. Samuel M. Fischbein PLS No.3587 SHEET 1 OF 2 LEGAL DESCRIPTION MS WATSONEA It AND CITY OF MIAMI MIAMI—DADE COUNTY, FLORIDA #1813H DATE: 4/27/07 NOT TO SCALE LB 42,37 P.O.C. NW CORNER OF TRACT 'D' OF WATSON LSLAND SOUTHWEST AS PER PLAT BOOK 166, PAGE 11 OF MIAMI-DADE COUNTY PUBLIC WEIDENER SURVEYING AND MAPPING PA 10418 N.W. 31at TERRACE Miami, Florida 33172 (305) 599-6381 WATSON ISI.4ND TRACT "A" 400' RECORDS. 3 L=15.67' - R=300.00' O. G=259'34" P.O.B. NMSEA # 1 L=13.59' 0 R=25.00' 6=31'06' 17' Ng¢.5,5" 3g GRAPHIC SCALE 200' 100' 0 200' 400' is I::=� - �■ ( IN FEET ) 1 inch = 200' ft. SKETCH TO ACCOMPANY LEGAL DESCRIPTION LB L ND. P.O.B. P.O.C. \ PLS M CENTERLINE DELTA ANGLE LENGTH LICENSED BUSINESS NUMBER POINTOF BEGINNING POINT OF COMMENCEMENT PROFESSIONAL LAND SURVEYOR RADIUS WEIDENER SURVEYING AND NAPPING \ VP\ SHEET 2 OF 2 EXHIBIT "B" LEGAL DESCRIPTION AND SURVEY OF WATSON ISLAND HELIPORT (the "SUBLEASED PREMISES") WEI.DENER SUR VE YING AND MAPPING PA 10416 N.W. 31st TERRACE Miami, Florida 33172 (305) 599-6381 LEGAL DESCRIPTION FOR HELIPORT PORTIONS OF TRACT D, WATSON ISLAND -SOUTHWEST. AS RECORDED IN PLAT BOOK 166 AT PAGE 11 OF THE PUBLIC RECORDS OF MIAMI—DADE COUNTY, FLORIDA. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHWEST CORNER OF SAID TRACT D; THENCE S1712'21"E ALONG THE WESTERLY LINE OF SAID TRACT D FOR 367.59 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 300.00 FEET; THENCE ALONG THE WESTERLY LINE OF t SAID TRACT D SOUTHEASTERLY 250.13 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 47'46'15"; THENCE 564'58'36"E ALONG THE WESTERLY LINE OF SAID TRACT D FOR 215.90 FEET TO THE POINT OF BEGINNING OF A PARCEL OF LAND HEREINAFTER DESCRIBED. THENCE N24'15'11'E FOR 229.86 FEET, THENCE 552' 14'06"E FOR 48.65 FEET; THENCE S64'58'36"E FOR 232.65 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 25.00 FEET; THENCE SOUTHEASTERLY 13.59 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 31'08'17" TO THE POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 240.00 FEET; THENCE SOUTHEASTERLY 223.76 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 53'25'05"; THENCE S25'01'24"W FOR 198.84 FEET; THENCE N64'58'36"W ALONG THE SOUTHWESTERLY LINE OF SAID TRACT D FOR 505.03 FEET TO THE POINT OF BEGINNING, SAID LANDS BEING SITUATED ON WATSON ISLAND, CITY OF MIAMI, MIAMI DADE COUNTY, FLORIDA. CONTAINING 2.41 ACRES MORE OR LESS (104,927 SQUARE FEET). • THIS IS NOT A SURVEY. NOT VALID WITHOUT THE SIGNATURE AND ORIGINAL RAISED SEAL OF A FLORIDA PROFESSIONAL SURVEYOR AND MAPPER. DATE PREPARED: APRIL 27, 2007. PREPARED FOR THE CITY OF MIAMI. Weidener Survejing & Mapping, P.A. Florida Certification No. LB 4207 Samuel M. Fischbein PLS No.3587 SHEET 1 OF 2 LEGAL DESCRIPTION HELIPORT WATSON ISLAND CITY OF MIAMI MIAMI—DADE COUNTY, FLORIDA 1813H DATE: 4/27/07 NOT TO SCALE LB 4207 r. P.O.C. NW CORNER OF TRACT "D" In OF WATSON ISLAND SOUTHWEST r i AS PER PLAT — BOOK 166, Z PAGE 11 OF o, MIAMI—DADE COUNTY PUBLIC - RECORDS. 0 WEIDENER SURVEYING AND MAPPING PA 10418 N.W. 31st TERRACE Miami, Florida 33172 (305) 599-6381 WATSON ISLAND TRACT "A" co. TRACT "D" L=250.13' R=300.00' A=4746' 15" 6 7 v n N P.Q.S. °O4/77,,, HELIPORT GRAPHIC SCALE 400' 200' 100' 0 200' (_ IN FEET ) 1 .inch = 200' ft. TEND: CENTERUNE A DELTA ANGLE LB LENGTH L UCENSED BUSINESS NO. NUMBER P.D.B. POINT OF BEGINNING P.O.C. POINT. OF COMMENCEMENT PLS PROFESSIONAL LAND SURVEYOR R RADIUS WSM WEIDENER SURVEYING AND MAPPING 352' 14'06"E 46.65' S64, 2,3:z 65,6F L=13.59' R=25.00' A=31.0B' 17" , a64, HELIPORT O 'STFR(361r 104,927 SQ.FT.± a E0 505- CT3_. co 400' 43,4 co SKETCH TO ACCOMPANY LEGAL DESCRIPTION SHEET 2 OF 2 I • EXHIBIT "C" CONCEPTUAL SITE PLAN OF WATSON ISLAND HELIPORT EXHIBIT "D" COST ESTIMATE FOR THE CONSTRUCTION OF THE WATSON ISLAND HELIPORT .Heliport Facility Capital Improvement )?lan Cost•Estimate •Description Unit . Unit Cost Qty . Total Item cost Site Clearing and Preparation LSF $100,000 1 $100,000 Helipad Construction SF $15,000 -4 $60,000 Safety and Security Allowance LS $50,000 1 $50,000 Undergrounding/Relocation of Overhead and• Utility Lines -LS $200,000 $200,000 Balance of Apron Area .• SF . $5.00 147,000 $735,000 Terminal Building $F, $300 4,500 $1,350,000 Security Fencing LF $20 • 1,000 . $2'0,000 Fuel Farm EA $400,000 1 $400,000 • Hangar Construction SF $150 18,000 $2,700,000 Retaining Wall •LF $1,500 500 $750,000 Landside Improvements . • Access Roads -; SF ..•-: ; $3.00 45,000 .$135,000 Landscaping/I,rrigation-= !. $F • ! .! • • $0.50 • 17,000 $8,500 Sidewalks SF $4.00 1,600 .$6,400 Site Ammenities (Lighting, Signage and Landscaping) LS $75,000 .1 $75,000 Drainage ExfiltrationT LF' ,$150 450 -$67 500 Catch Basin EA '` $4,000 3 • $12,000 Oil/Water Separator - EA." •_ $35;000 .1 " .$35,000 TOTAti-' • Notes: (1) The developer must complete the Heliport Facility within 24 months'from Commencement Date. (2) The developer may request, subject -to approval in two phases, •provided however that the first‘ landing area in order to allow the Heliport'E by FOOTand the City, to -develop the Heliport Facility 1p,h.ase•includes the construction ofthe building and the tyto be,bp.erational. (3) The second phase must begin constructionl-prior to the-cornpletion of the first phase, and must also be completed within.24 months from the Commencement Date. EXHIBIT "E" INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE- WATSON ISLAND HELIPORT CONSTRUCTION I. Commercial General Liability (Primary & Non Contributory) Limits of Liability Bodily Injury and Property Damage Liability $1,000,000 Each Occurrence $2,000,000 General Aggregate Limit $1 000 000 Products/Completed Operations > Personal and Advertising Injury $1,000,000 Endorsements Required City of Miami included as an additional insured MSEA included as an additional insured Employees included as insured Contingent Liability Contractual Liability Premises/Operations Explosion, Collapse and Underground Hazard II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements Required City of Miami included as a additional insured MSEA included as an additional insured Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation $ 1,000,000 IV. Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Umbrella Liability (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability $ 4,000,000 Each Occurrence $ 4,000,000 Aggregate City of Miami and MSEA included as an additional insured VI. Payment and Performance Bond City of Miami & MSEA Listed as Obligees VII. Owner's & Contractors Protective Liability City of Miami and MSEA as named insured $2,000,000 $1,000,000 VII. Builders' Risk Causes of Loss: All Risk of Physical Loss or Damage including coverage for Wind/Hail and Flood Valuation: Replacement Cost Deductible: $5,000 All other Perils 5% maximum on Wind City of Miami and MSEA included as an additional insured A. Limit/Value at Location or Site $ 2,000,000 B. Coverage Extensions • Materials, supplies and similar property owned by others for which you are responsible. ® Equipment breakdown. • Temporary storage/transit coverage. • Coverage for site preparation, re- excavation, re -preparation and re -grade in the event of a loss. • Fences, scaffolding, construction forms coverage and signs ® Valuable papers coverage for blueprints, site plans and similar documents. • Trees, shrubs, sod, plants while at premises. • " Flood, including inundation, rain, seepage and water,damage. • Earthquake • New ordinance or law; reimbursement for any resulting loss of value to the undamaged portion, and required demolition expenses, including construction necessary to repair, rebuild or re- construct damaged parts. • Temporary structures, cribbing and false work built or erected at construction site. • Debris Removal. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. 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. EXHIBIT "F" PAYMENT AND PERFORMANCE BOND REQUIREMENTS [TO BE PROVIDED BY TENANT PRIOR TO EXECUTION] EXHIBIT "G" APPROVED AIRPORT LAYOUT PLANS OF THE WATSON ISLAND AIR TRANSPORTATION FACILITY / • / .I / /. / (1( /' / cs7" J rp / F J S EXHIBIT "H" FLORIDA DEPARTMENT OF TRANSPORTATION APPROVAL OF THE WATSON ISLAND HELIPORT CHARLIE CRIST GOVERNOR March 30, 2010 Florida Department of transportation 1000 NW 111 th Avenue Miami, Florida 33172 Mr. Aldo Bustamante Real Estate Manager Department of Public Facilities/Asset Management City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 STEPHANIE C. KOPELOUSOS SECRETARY Re: City of Miami Watson Island Transportation Facility — Seaplane/Helicopter Layout Plan and Narrative Report Dear Mr. Bustamante: The Department has reviewed the above referenced Seaplane/Helicopter Layout Plan and Narrative Report of the Watson Island Transportation Facility. The Seaplane/Helicopter Layout Plan and Narrative Report dated January 7th 2010 is in compliance with the Florida Administrative Code Chapter 14-60 and the FDOT Guidebook for Airport Master Planning. Therefore, it is approved as presented. The Department appreciates the opportunity to review the Seaplane/Helicopter Layout Plan and Narrative Report. Should you have any questions, feel free contact me at (305) 470-5292. Sincerely, Dionne G. Aviation/Seort Programs Administrator Public Transportation Office cc: L. Michael Carey, P.E., Kimley-Horn and Associates,Inc Aaron Smith, FDOT, State Aviation Manager Abdul Hatim, FOOT, Aviation Program Development Manager Reading File Project File www. dot.state.fl .0 s RECYCLED PAPER EXHIBIT "I" FEDERAL AVIATION ADMINISTRATION APPROVAL OF THE WATSON ISLAND HELIPORT fa U.S. Deportment of Transportation Federal Aviation Administration July 30, 2010 Mr. Pedro Hernandez, P.E. City Manager City of Miami Department of Public Facilities P.O. Box 330708 Miami, Florida 33233-0708 Dear Mr. Hernandez: RE: Aeronautical Study 2010-ASO-192-NRA and Aeronautical Study 2010-ASO-396-NRA Miami Seaplane Base (X44); Miami, Florida Orlando Airports District Office 5950 Hazeltine National Dr„ Suite 400 Orlando, FL 32822-5003 Phone: (407) 812-6331 Fax: (407) 812-6978 We reviewed the Federal Aviation Administration (FAA) Form 74.80-1, Notice of Landing Area Proposal for the proposed heliport relocation and the proposed airport layout plan for the Miami Seaplane Base (X44) also known as Watson Island Air Transportation Facility. We have determined that the proposed public use landing area, to be located at latitude 25°46'58.02"N., longitude 80010'34.84"W., (NAD 83) at Miami, Florida, will not adversely affect the safe and efficient use of the navigable airspace by aircraft, provided the following conditions are met: a. All operations are conducted in VFR weather conditions b. The landing area is unlimited for public use. c. The takeoff/landing area is appropriately marked. d. A non -obstructing wind indicator is maintained adjacent to the takeoff/landing area. e. The landing area is constructed in accordance with FAA Advisory Circular (AC)• 150/5390- 2B, Heliport Design. Publish the heliport in the AFD and VFR Sectional Aeronautical Charts. No night helicopter operations are conducted unless the takeoff/landing area and wind indicator are lighted and a heliport identification beacon is installed. h. Unauthorized persons are restrained from access to the takeoff/landing area during helicopter flight operations by use of a non -obstructing safety barrier. Fire protection is provided in accordance with the ideal fire code and/or AC 150/5390-2B, Heliport Design. The proponent refers to AC 150/5390-2B, Heliport Design, in establishing an acceptable level of safety for helicopter operations at this heliport. 9. j. k. Al! helicopter approach/ departure route operations are conducted on a course of 150 or 330 degrees (over the seaplane landing area) curving into the touchdown pad of the FATO/TLOF. Approach and departure paths from heliports should meet the standards depicted in Figures 2-7 and 2-8 of AC 150/5390-2B, Heliport Design. 2 1. The heliport proponent will reexamine obstacles in the vicinity of the approach/ 40d. Aparture y new paths on an annual basis in accordance with AC 150/5390-2b, paragraph obstacles noted will be forwarded to the Airport District Office and Flight Standards District Office of Regional Flight Standards Division Office. m. A representative of the Flight Standards District Office must evaluate the heliport for compliance prior to operational use. n. All ingress/egress routes shall have a clear 8:1 visual approach slope. o. The sponsor enters into an operational Letter of Agreement (LOA) with the MIA tower stating operational procedures which preclude helicopter operations from interfering with aircraft traffic pattern operations in the vicinity. p. A note should be added the heto MIA Ruort Master nway 27ecord (a�dO) Ru Runng: way 26LIRelicopters approaching X44 are underapproaches q. This aeronautical study did not consider the interaction of seaplane operatowitfor seapface ace craft traffic which is regulated by 14 CFR 91.115, nor does it give approval operations on this body of water. This issue should be considered by the local FSDO inspecting the helipad. r. Approval authority is vested with the ownerlcontrolling agency of the body of water. s. A satisfactory Flight Standards District Office inspection report with no objections is completed. This ALP was coordinated with Mark Hatfield of the Department of Homeland Security/Transportation Security Administration, Miami International Airport, and he had no comment. For final FM approval of the Airport Layout Plan Update, please forward 12 copies of the full-size, full ALP Set to this office in attention of Rebecca Henry. Advisory circular (AC) 15D/5390-2B can be found online at: htt ://www.faa. ov/airports airtraffic/ai orts/resources/advisory circulars/media/150-5390- 2B/150.5390 2b.doc Contact the FM Flight Standards Division at (404) 305-6108 for further it n coreview upt ng completion of all construction. Please refer to the above mentioned AeronauticalStudy Ingress and Egress routes will be determined by the Flight Standards District Office (FSDO) inspector following the onsite evaluation. The void date of this determination is July 30, 2011. Ifrequestede an landing ea is not by othe e void date, this determination will expire unless you r termination. Please update your current be found � Advirm sory Circula10-1 r 1� /520�-rt Master 35 (SUBMITTIecord) to lf�G�'HE ce. Guidelines for completing this form ca AIRPORT MASTER RECORD Its ORDER TO ACTIVATE A NEW AIRPORT). ved with This determination does not roman that the approves o the safephysical effi�ent evelase of airspaopment lce by aircraft proposed landing area. Our determination is lirt�it d tOur review considered the effect the proposal would have on the following: • Existing or contemplated traffic patterns of neighboring airports, • Existing, navigable airspace and projected programs of the FAA, and Existing or proposed manmade objects on file with the FAA and natural objects. 3 This determination does not preempt or waive any ordinance, law, or regulation of any other governmental body or agency. The FAA cannot prevent the construction of any object. Therefore, it is conceivable that your facility could be adversely affected by an object being constructed nearby unless you are protected through such means as local ordinances and/or acquisition of property rights. A general ordinance of the State of Florida provides that certain airport constructions or alterations require a written permit prior to construction. The permit may be obtained from the Florida Department of Transportation. Registration ist required by f(FDOT) Avationate of Florida prior to Office ation for all private facilities, Contact (850) 414 4500 for further guidance. he Florida Department of Transportation Please let us know if you have any questions concerning this determination or if you need technical assistance in airport matters. Sincerely, j _ // /1 /f a llll�!l VV. Dean Stringer Manager cc: Federal Highway Administration, w/cy 7480-1 & sketch ASO-230 South Florida FSDO, Ft. Lauderdale Facility 1050 Lee Wagner Blvd. Ste 201 Ft. Lauderdale, FL 33315 David Roberts Florida Department of Transportation Aviation Office 605 Suwannee Street, MS 46 Tallahassee, Florida 32399-0450 James G. Canfalone Miami SPB 1000 MacArthur Causeway Miami, Florida 33132 i EXHIBIT "J" JOINT PARTICIPATION AGREEMENT CHARLIE CRIST GOVERNOR May. 27, 2010 ..Florida Department of Transportation DISTRICT SIX STEPBANIE C. KOPELO'QSOS • SECRETARY 1000 NW 1110'.Avenue Miami, Florida 33172-5B00 Mr. Aldo Bustamante Real Estate Manager Public Facilities/Asset Management City of Miami 444 SW 2ia Avenue, Third Floor Mia-ni, Florida 33130 Re: JointParticipationAgreement Watson Island Air 'Transportation Facility FM No. 42274219402— ConfraCI # APY07 • _t req rri Dear Ms, Bustamante: Attached are four (4) copies of the above referenced document. Please return all four (4) copies after execution .by your Agency for further processing, along -With two (2) copies of the .resolution authoriang the applicant to execute the agreement. Two (2) . copies of the agreemen -will be returned -when fully executed by the Department. The agreement and -resolution -must be oripnsl signature documents or properly executed copies. Should you have any questions or need atlditi.onal information please contact me at (305) 470- 5292. Sincerely, Dionne G.. He Aviation/Seaport Program Administrator Public Transportation Office www. d state .fl . u.s •i RECYCLED PAPER Financial Project No.: 42274219401 ermaegmen p ase•sequence Contract No., APY07 CFDA Number STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION PUBLIC TRANSPORTATION JOINT PARTICIPATION AGREEMENT Fund: DPTO Function:, ' 63-7 • Federal No.: _ DUNS No•: _ CSFA Number: THIS AGREEMENT, made and entered into this. day of FLAIR Object Code: 750004 Org, Code: 5506202062E Vendor No.: "F596000375097 55.004 7 PUBLIC TRANSPORTATb e Page 1 ar14 088719 b d between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, yan hereinafter referred to as the Department, and City of Miami - Public FaclittleslAsset Management . 444 SW 2nd Avenue, 3rd Floor, Miami, FL 33130 hereinafter referred to as Agency. The Department and Agency agreethat.all terms of this Agreement will be completed _:._ — -and-this-Agreement will -expire unless a-time.extension .is p.rovided____ on or=before 613012016 in accordance with Section'18.00. 171-:NES,SETH: appropriate jurisdiction eclu beg WHEREAS, the Agency has the authority. uthor etautnoetlnto function radequa#ely inoailnareasko e appproject p act hereinafter described, and the Department has been granted th , f Y the implementation of an integratad and balanced ransportation system and is authorized under 332.006 (6). Florida Statutes, to enter into this Agreement, . NOW, THEREFORE, in consideration of the mutual covenants, promises and representations herein, the parties agree as follows:. -1.00 Purpose of Agreement: The purpose ofthls Agreement is with three parking Build aterminal facility of 4,500 sq. ft; five helicopter -hangers (60x60 - •18,000 sq, -ft); one landing pad pads; and one fuel farm with airfield access of.,1p40•sq• ft,.; • ... :1' .:!r- and as further described in Exhibit(s) P,'B;C;t7 & E" •` hereof, hereinafter referred .to as the proje a to provi terms and conditions upon which such assistance will be project will be undertaken and completed. attached hereto and by this reference made a part e pro id d and the o understandingsasto the manner in which the Agency and the the a asthe 725.0304X PUBLIC TRANSPORTAOTION Pape 2of 4 .2.00 Accomplishment of the Project ect as in 2,10 General Requirements: The Agency a art thereof this Agraeernen. Agreement, with all pralete the ctical dispatch, in described sound, "A" attached hereto and by this reference m p economical, and .efficient manner, and in aocordence with'the provisions herein, and all applicable laws, 2.20 Pursuant to .Federal, State, and;.L pc®) Law: In the event that.any:election, referendum, approval, permit, '' •'' • ` applicable taw to enable the Agency'to enter into this ' notice, or other proceeding or authorization is requi`site under. of the Agreement or o Agency ke the will initiate and roject consummate, areunder; or to s p ovided by law, all bserve, assume or actions necrry out essary with respect to any such Agreement, the Agency matters so requisite. e to letion ngs nece,ssary 2.30 rofe the r Agency: The the Agency to provide the neinitiate and cessary funds for ciompletion'of the project. inciuding federal aid requirements to enable9 2.40'Submission of Proceedings, Contracts and Other. Documents; The Agency shall submit to the Department such data, reports, records,.contracts:and.dteefeocu ents relating e part o -to the e ,project as.the Department may require .as listed in 'Exhibit "C" ;attached hereto and by this 3.00 .Project Cost: "The total estimated cost of the project is $ 6,70 ,400.00 •This amount... _ . his reference made a is based upon the estimate summarized in Exhe eattached hereto and by i art hereotthis. Agreement -The Agency agreesto bear ail expenses in excess o hetotal estimated cost of he project and any deficits involved, 4:D0Department Participation: The Department agrees t a maximum d painExh bit rticipatio3",1nr ludi namoucontingencie to the in the project.in the amount of $ '1,D98,DOO.OD percentage(s) of total cost shown In Exhibit'B".; whichever is lass: 4.10 Project Cost.Eliglbllity : Project -its eligible for State participationt nw �ll be llo edo.nly from the effective — aaTe or itragreement ltis-understood-that-state ?artisipatien-in-eliglble-pr • q P program • Legislative approval of the;lepara?.ent s appropriation request in the adopted work year that the project is scheduled to be committe.a; ' (b) Availability of funds as stated in Section 17,00 of this Agreement; (c) Approval of all plans, specifications, contracts or other obligating documents and all other terms of this Agreement; g appropriation authority (d) 'Department approval of the project scope .and budget (Exhibits A & B) at the time appro p .becomes available, 4:20"Front End Funding : -Front end'fuhding;0 '• '. " ® is not applicable. If applicable, the Department :ia may initially pay 100% of the total 'allowable iriddir'ed pi•ojebt costs Up to an amount equal to its total share of participation as shown in paragraph 4.00, 'percent of the 5.00 Retainage : Retainage 0 is . O is not applicable, If applicable, Department's total share -of participation as shown Iof the fl ph 4,00 is ,0 ectto.be aut held In retalnage to be disbursed, at the Department's discretion, on or beforecompletion -7aamo-os PUBLIC TRANSPORTATTION Pogo of 14 6.00 Project Budget and Payment Pro'yisions: I 6,10 The Project ta Budget: debudd et car y oct �get t.the prooject and shall Incur oepared by the bligations again t and by the disbursements The Agency shallmaintainin conformity onfo mid t g carry beprfective only is compiles latest pationr requirements for establ shed in Section t. No9et increase or decrease shall 4.00 of this Agreement and is be effective unless It compiles with' fun participation approved by the Department Comptroller. the 6.20 Payment Provisions: Unless otherwise allowed under Section 4.20, payment will -begin in the year projector ctalor project redphase as is the daten the work invo ce is submitted ubmitted with throgram as of thee final paymeate of the nt due uporeement n receipt tof'ia final invoice.d actual costs incurred as of the dat , 7.00 Accountin.gRecords: ll ablish for roject, in 7.10 .Esrebuise mens and Msi te De Department's program gu defines/proceduresof Accounting Records: The Agency aands"Princ'iplestfor e State and conformity with requirements establishedby P stem or establish Independent Local Governments", separate accounts to be'maintained within its existing accounting systemtiOn of the accounts. Such accounts .are referred De Department uherein oectively as ppn requestthe any`project time.during theYperiod of OCUBilttheaAgreement andlfor .account shall be made availableeto the p three years .after final payment is made. • _ .. . he ency riately record in the .7.20 Funds Received Or Made Available � Is a mrernber oftheg Federal Deposit Pt Insurance Corporation; all ct account, and deposit in a bankm otrust Department pursuant.tony paymentsotherwise .received.on ac from the Dee pro project, which Departmengpaymentsand all other funds are herein collectively s provided for, accruing to, or. otherwise received account of P 1 for all project to s "project excessfundhe The inAgencsureduriderrfederral plans, or e depositories of under State plans whichhavebeen approved d d fo project funds In of the amounts� es and in the manner the deposit of projectiunds by the Departmenti;bblichfundds funor ds, approved aside by the Department. �P as prescribed by State Law for the security of p • .. 7.30 Costs incurred for the Project: The Agency }thboutable90 pe otions-which-laaue�ot the project account all _zecei peligible rlth� real red s of the project Costsin- excess ofrihtTlatestapproved budget approval of the Department shall not be considered eligible. costs. • '7.40 Documentation of.Project Costs: All costs bcharged properly the ecproject, rod payrolls, timeing any y records, fed ervi contracts, or ces contributed bythe Agency or others, shall be:supp Y P P Y vouchers evidencing in proper detail the nature and propriety of the charges. which Is :7.60 Checks, Orders, and Vouchers; Any check or order drawn by the Agency with reesp ect too vouchery Itemthen on or will be chargeable against the project'aeco�rite ail,jbh dra`^' ltorvrahlchrdance with a such check ororderly s dawn. All checks, filepa r the office voic s the Agency statinguchin prop ,...o. purpose payrolls, invoices, contracts, voucheres�blerand, to the extenttfea documents kept sparatepertaining andin whole or in apart from all othart to er theproject shall be clearly identified, readily arc documents. and cooperate with any 7.60 Audit Reports: In addition to the requirements below, the Agency agrees to comply P but not and monitoring scope Theence further appropriate comply athp nd cooperatewithany inspections mited tositerevi visits and s lgati ns, or audits. deemed g Y P shall retain investigations, or audits deemed necessary by the State Comptroller or Auditor General, The Agency a ees upon rom.the. The sufficient records demonstrating its ollowlthe:D,.e .. a�mentthe-terms ac ass tothis suchre ordsfor and working p epee years from.the date the audit requir is meissued, and limashall h u� state agency inspector general, the Auditor follov�ifng requirements do not iimitthe agsh,,ofat ��fiotli�le D� he s tf�orlty of any state or.arrange for the conduct of additional audits or evaluations of state financial a a� General, or any other state official. ..: . . The Agency shall comply with.all audit and audit reporting requirements as specified in Exhibit "D" attached hereto and by this reference made a part hereof this Agreement 725413D•D6 PUBLIC 7RANSPORTATION O1ti D Paps 4 or 14 7.61 Monitoring: In addition to reviews of audits conducted in accordance with OMB Circular A-133 and Section 215.97, Florida Statutes, (see "Audits" below), monitoring procedures may Include, but not be limited to, on -site visits by Department staff, limited scope audits as defined by OMB Circular A-133, and/or other procedures_ The Agency agrees to comply and cooperate fully with any monitoring procedures/Processes deemed appropriate by the Department. In the event the Department -determines that a limited scope audit of the Agency is appropriate, the Agency -agrees to comply with any additional instructions provided by the Department staff to the Agency regarding such audit. The Agency further agrees to comply and cooperate with any Inspections, reviews, investigations, or audits deemed necessary by FDOT's Office of Inspector General (OIG) and Floride's'Ghief Financial Officer(CFO) or Auditor General. 7.62 Audits: ;e:rie: • J •:r. Part 1 Federally Funded: If the Agency is a"atate, local government, or non-profit organizations as defined in OMB CircularA-133 and a recipient of federal funds, the following annual audit criteria will apply: 1, in the event that the recipient expends $500,000 or more in Federal awards in its fiscal year, the recipient must have a single or program -specific audit conducted in accordance with the provisions of OMB Circular A-133, as revised. Exhibit "D" to this agreement indicates Federal resources awarded through the Department by this agreement. In determining the Federal.awards expended in its fiscal year, the recipient shall consider all sources of Federal awards, including Federal resources received from the Department. The determination of amounts of Federal awards expended .should be in accordance with the -guidelines established .by OMB Circular A-1.33, as revised, An audit of the recipient conducted by the Auditor General in accordance with the -provisions OMB Circular A-133, as revised, will meet the requirements of this:part. . 2, In .connection with the audit requirerents addressed in Part I, Paragraph :1., the recipient shall fulnll'the .requirements relative to auditee responsibilitiessae provided in Subpart C of OMB CircularA-133. .3.: Ifthe recipient expends less than the amount in Part 1, Paragraph 1., an audit conducted in accordance with the provisions of OMB Circular A-133, is not required. If the recipient elects to conduct such an audit, the cost of the audit . must be paid from resources obtained horn other than: Federal entities, 4, Federal awards are to be identified using the Catalog of Federal Domestic Assistance (CFDA) title and number, award number and. year, and name of the awarding federal agency. Part 11 State Funded: if the Agency is a°inonstate entity as eiefined by Section 215.97(2)(m), Florida Statutes, and a recipient of state funds, the following annualif criteria. will apply,: 'F, in the event that the recipient expends a total amount of state financial assistance equal to or In excess of S5.00, 000 In any fiscal year, the recipient must nave a State single .or project -specific audit -for such fiscal year in accordance with Section .215.97, Florida Statutes; applicable rules of theDepartment of Financial Services and the CFO; .and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for -profit organizations), Rules of the Auditor General. Exhibit 'iD"-to this agreement indicates state financial assistance awarded through the Department bythis agreement. in determining the state.financial assistance expended In Its fiscal year, the recipient shall consider all sources of state financial assistance, including state financial assistance received from the Department, other state agencies, and other nonstate entities, State financial assistance does not include Federal direct or pass -through awards and resources received by.a •nonstate entity for Federal ,program matching requirements. 2, In .connection with the audit requirements addressed in'Part Il, -Paragraph 1., the recipient shall ensure that the audit.cornplies with the requirements of Section 21.5.97(7), Florida Statutes, This includes 'submission Df a financial reporting package as defined by Sectlon215:97(o)(ekFtorida Statutes, and Chapter 10,550 (local governmental entities) or 10.65D (nonprofit end for -profit organizi tiona)i? Rules :of the Auditor General. 3, If the -recipient expends lessthan the amount In Part II, Paragraph 1., such audit is not required. If the recipient &ectsto conduct such an audit, the cost of the audit must be paid from the recipient's resources obtained from nonstate • entities, 4. State awards are to be identified using the Catalog. of State Financial Assistance.(CSFA)title and number, award number.end year, and.name of the state agency awarding It 726.030.00 PUBLICTMN6PORTAo Oo pape5of1A Part 111 Other Audit Requirements '1. The Agency shall follow-up .and a ket�o� and .e 2Gf t status of the eludit findings lsOequi ren of a quired. Currentyeadr audit prior year audit findings, Including correctr aG findings require corrective action and status of findings. 2. Records related to unresolved audit' 'indings, appeals, or litigation shall be retained .until the action is completed Departmentapers shall be given the dispute Is rpt oll e, Athhe Audtor General. This sectiion doerojeCt retCoriis and audit works notlimit-the au horityto the Department, the of the D partment to conduct or ngeforComptroller, andaadditional for the conduct of additional audits or evaluations of state financial assistance or limit the authority of any other • • state official. • Part IV Report Submission revised, and required 1, byCopiesc of reporting Pe t I packages for audits conducted be s In accordance with OMB bmitt d, when requited by Section .320 (d) OMB Circular A-133, by Section7.62 Pert 1 ofthisagreement by or on•behalf of the recipient directly to each of the following: .A. The Department at each of the following addresses: Florida Departmen of TransportaFlorida Department of Transportation tion or ATTN: Public Transportation Manager ATTN:.JPA Coordinator 10D0 NW 111 Avenue, Room 62D2-6 1000 NW 111 Avenue, Room 6114 Miami, FL 33172 Miami, FL33172 • B. The number of copies required by Sections .320 (d)(1) .and (2), OMB Circular A-133, submitted -to the following address: .Federal Audit Clearinghouse Buzau of the Census • ;;1p1 East1 Dth.Street . 'Jffersonville, IN 47132 .�.'' ... .. � n�na Circular C• Other Federal agencies and.pass t Dgh entr-ties in accordance -with Seetiens .320 (e)-arnd�a A-133. 2. In the event that a copy of the reporting package for an audit required .by Section 7.62Pert 1 of this Agreement and conducted t In accordanceion.320with OMB Circular A-133, theircular A-133 is {rec pient shall submit the required required to be submitted to -the e written notification partmentior ons pursuant to section .320 (e)(2), pursuant to Section .320 (e)(2) and e copy of the recipients audited schedule of expenditures of Federal awards directly to each of the -following: ; , <<r: == Florida Department of Transportation Florida Departmen of Transportation ::: ; or ATTN: JPA Coordinator ATTN: Public Transportation Manager. 100D NW-111 Avenue, Room 6202 B 100D NW 111 Avenue, Room 6114 ' � '' " Miami, FL 33172 Miami, FL 33172 In addition, pursuant to Section .320 (f), OMB Circular A-133,-as revised, the recipient shall submit a copy of the reporting package described in Section .320 (d), OMB Circular A-133, and any management letters issued by the auditor, .to the Department at each of the following addresses: . Florida Departmen ofTransportatton or Florida Department of Transportation I ATTATTN: ATTN: Public Transportation Manager . 'N: JPA Coordinator NW 111 Avenue, Room 6202 B 1000 NW 111 Avenue, Room 6114 :-. � Miami, FL 33172 Miami, FL 33172 4. ,: ; 726U3o-00 PUBLICTRANSPORTATIN DM 0 Pap B of 14 3. Copies of financial reporting packages required by Section 7.62 Part II of this Agreement shall be submitted by or on behalf of the recipient directly to each .of the following: A. The Department at each of the following. addresses: Florida Departmen of Transportation or ATTN: Public Transportation Manager 1000 NW 111 Avenue, Room 8114 Miami, FL 33172 • B. The Auditor General's Office at the following address: Auditor General's Office Room 401, Pepper Building ,1 1..West?Jladlson Street Tallahassee, Florida 32399-1450 -4, Copies of reports or the management letter required by Section 7.62 Part Ill of this Agreement shall be submitted by or on behalf of the recipient directly to: A. The Department at each of thefollowing addresses: Florida Departmen ofTransportation or ATTN: PublicTransportaton:Manager 1 DDD NW 111 Avenue, Room 6114 -Miami, FL 33172 {' Florida Department of Transportation ATTN: JPA Coordinator 1000 NW 111 Avenue, Room 6202-B Miami, FL 33172 Florida Department ofTransportation ATTN: JPA Coordinator 1000 NW 111 Avenue, Room 6202-B Miami, FL 33172 .5, Any reports, management letter, or other information required to be submitted to the Department pursuant to this Agreement shall be submitted timely in accordance with OMB Circular A-133, Section 215.97, Florida Statutes, and Chapter 10.550 (localgovernmental entities) or 10.650 (nonprofit and for -profit organizations), Rules of the Auditor General, as applicable. 6 R�cipiants when st.ihmitfinonancial_mporfina kas tothe Dep�itfent for audits done in.accgrdance,with OMB Circular A-133 or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for -profit organizations), Rules of the Auditor General, should indicate the date that the reporting package was delivered to the Agency in correspondence accompanying the reporting package. . 7.63 Record Retention: The Agencysljall retain sufficient records demonstrating its compliance with the terms of • this Agreement fora period of at least five yeat� from •the•date the audit report is issued, and shall allow the Department, or its designee, the CFO or Auditor General a cesS to Such records upon request. The Agency shall ensure tat the al Independent auditworking papers are made available to the Department, or its designee, date the Dner epartment. request -for perid of at costs least five years from incurred under the terms of this Agreement shall be maintareport is issued, ined and made ayss railable upon Department. Records of requestto the Department at all times during -the period of this Agreement•and for five years afterfinal payment is made, Copies of -these documents and records shall be furnished tothe Department.uponrequest, Records of costs incuurr d include the Participant's general accounting records and -the project records, together with supporting records, of the contractor and all•subcontractorsperforming work on the project, and all other records of the Contractor and subcontractors considered necessary by the Department for a proper audit of costs. 7.64 Other Requirements: 'If an audit discloses any significant audit findings related to any award, including material the Agency llsubm t asl prolect*npliance partof the a audit package t irements or the Department a ple lan iorditions in corrective action tocontrols eliml ate, such the Agency shallp such audit findings ora describing the reasonsthat corrective action is not necessary. The Agency shall take timely and appropriate corrective action to any audit findings, recommendations, and corrective. action plans. 726•DJD.D6 PUBLIC TRANSPORTATION 01/10 Pegg 7 of 14 7.65 insurance: Execution of this Joint Participation Agreement constitutes a certification that the Agency has and will maintain the ability to repair or replace any project equipment or facilities in the event of loss or damage due to any accident or casualty for the useful life of such equipment or facilities. In the event of the loss of such equipment or facilities, the Agency shall either replace the equipment or facilities or reimburse the Department.to the extent of its interest in the lost equipment or facility. In the event this Agreement is for purchase of land or for the construction of infrastructure such as airport runways the Depar menf r lay waive.or'modify this section, 8.00 Requisitions and Payments: 8.10 Action by'the Agency: 1n order to .obtain any Department.funds, the Agency shall file with the Department of Transportation, District Six • Public Transportation Office 1000 NW 111 Avenue, 6114, Miami, 33172-580D its requisition on a form or forms prescribed by the Department, and any other dale pertaining to the project account (as defined in Paragraph 7.10 hereof) to justify and support the payment requisitions. 8.11 Invoices for fees or other compensation for services or expenses shall be 'submitted in detail sufficient for a .proper preaudh and postaudlt thereof. 8:12 invoices for any travel expenses•shali be submitted in' accordance with Chapter 112.081, F.S. The Department may establish rates lower than the maximum provided in Chapter 112.061, F.S, 8.1'3 For real .property acquired, submit; (a) the date the Agency acquired the real property, (b) a statement bytheAgency.certifyiing that the Agency has acquired said real property, and actual consideration paid for•reai property. and acquisition of the real property (c) a statement by the Agency certifying that the appraisal together with any attendant relocation of occupants was accomplished in compliance with all federal laws, rules and procedures required.by any federal oversight agency and with all state laws, rules and procedures„that may apply to.the Agency acquiring the real property. 8.20 Shemepartment's Obligation `. ubj'ci to otherproVisions hereof,. the. Department will honor such requisitions in amounts and at times deemeg.'by'the Department to be proper .to ensure the carrying out of the project and payment of.the eligible costs. However, notwithstanding any other provision of this Agreement, the Department may elect by notice' in writing not to make a payment on the project if: 8.21 Misrepresentation: The Agency shall have made misrepresentation of a material nature. in its application, or any supplement thereto or amendment thereof, or in or with respect to any document or data furnished therewith or pursuant hereto; 8.22 Litigation: There is then pending litigation with -respect to the performance o by the Agency of any of its duties or obligations which may jeopardize or adversely,affect the project, the Agreement, or payments to the project; • 8.23•Approval by Department: The Agency shall have -taken any action pertaining to the projectwhich, under this agreement, requires the approval of the.D,epertmeht,or has made related expenditures or incurred related obligations without having been advised by the.Departmentthat same are approved; -8.24 Conflict of interests: There has been any violation of the conflict of interest provisions contained herein; or 8.25 Default: The Agency has been determined by the Department to be in default under any of the 'provisions of the Agreement. 8,26 Federal Participation (If Applicable): Any federal agency providing federal financial assistance to the project suspends or terminates federal finahcial assistance to the project. In the event of suspension or termination of federal financial assistance,. the Agency will rein buG•se'the Department for all disallowed costs, including any and all federal financial assistance as detailed in Exibt .B. • 725.03D-08 PUBLIC TRANS ?CRTAo ON ,10 Pap B 0(1-0 al -notification 8.30 Disallowed Costs: In determining the amount of the payment, prior to elpt to tof annuffectve date of this f funds availability, the Department will exclude all projects costs incurred by theAgency prior ibutable to goods Agreement, costs which are not provided tfor(ln the. latest approved ve not been approved in writing getfor the project, and costs by the Department or services received under a contract or other arrengements which ha and costs Invoiced prior to receipt of annual notification of fund availability. 8.40 Payment Offset; If, after project completion, any claim Is made by the Department resulting from aanaudi s or for k or serviceperformed e nder any public tranis sportation rtation.jo ntreement, the nparticipation agreement which it hast may offset such amount from wi h the Agency due for work or services (60)days to the Department. owing .such amount if, upon demand, payment of'the amount is not made within sixty Y Offsetting amounts shall not be considered a breach of contract by the Department. • 9.00 :Termination or Suspension El q{'Or!jeFt: before completion, finally discontinues e f the Agency abandons or, other 9,10 Termination or Suspension Generally: l� the project; or if, bym ncementt, prosecut on,/orttimely cos or lmpletiontions t of the forth prof ct bySections 8the Agency.21 to 8.26 i is Irende edf iiimprobable, reason; e, cpo sible o P written notice to the Agency, suspend any or .all of its infeasible, Impossible, or illegal, the Department Will, by obligations .under this Agreement until such i e anyhe orallv nftitosr condiitionsresu tir this such suspension has ceased or been corrected, orthe:Department y nal rmination 9.11 1 Action Subsequent this go Notice the Agency shall proceed .promptly to carry out ttte actionsf required therein or which may notice underyor thll paragraph, roject which es mayincludea is andall of such is maybe requi ed or desirable torsuspend, as the case ke p to the minimum theay be, costs upon the bass e which the insuch otherportion of basis of which tine saocwhich g is to be conaput'egA_ (2) furnish e statement of the project activities and contracts, other undertakings the cost adva i cea 8 mento e iously rebeivved as istcosts; and (3) remit to the determined bythe Department to be due under the' provisions isions f the any ae dean p t P i., imposed bythe Department provisions .of the Agreement. The terminator suspension ue on the basis of teams and conditions imptth the latest schedule, olan1and budget as approved by the Department� upon thefailure of the Agency to'furnishlhe-schedulesplannandlaudget-within-a-reasonable-tare. The remittance by the Agency or the closing out of federal financial participation in the project shall not constitute a waiver of. any claim which the Department may otherwise have arising out.of this Agreement. actor 9.12 The Department reserves the right to unilaterally c lrthis Athergreemmaterel for refusal the p e oontr of Chapter n wi or Agency to allow public access to all documents, papers, 119, F.S. and made or received In conjunctioth'this Agreement. 10.00t Accd'Unt letion of -Project: on ion of the ,p Remission of payment, creimbur;ethentof all project cost payable from the projtect account Is made, thafter :payment, provision for payment, or Agency 'shall remit to the Department its share of any unexpended balance in the project account. 11.00 Audit and inspection: The Agency shall permit, and shall require its contractors to permit, the Department's authorized representatives to inspect all work, materials, payrolls, records; and to audit the books, records and accounts pertaining to the financing and development'of the project. 12.00 Contracts of the Agency:- 12.10 Third Party Agreements: Exdept as otherwise authorized In writing by the Department, the Agency shall ment of not execute including any contractor construction Urchase of commoditiesl. any rcontacts or amendments P rtment thereto, oint participation hiany third funds, withl respect e i pg consultant, act wiu p ... of the party ant ausectr the project b hefe:a mental proviided in Department. The Department specifically ally reservesal shall sufficient cause fior nonpayment by the � p .. or disapprove the unto itself the right to review the quallficattbns _of any consultant .or contractor and to approvepP employment of the same. •..•IiEt 72b-03D-0B PUBLIC TRANSPDRTATTIiONN Papa of 14 the '12.20 Compliance with Consultants' Competitive Negotiation t: Its understood and a agreed byaht artiest es hereto that participation by the Department in a project with an Agency, project for engineering, architecture or surveying services, is contingent on the Agency complying in full with provisions of Chapter 287, F.S., Consultants' Competitive Negotiation Act. At the discretion of the Department, the Agency will involve the Department that electi selection has beennt tion Process for all contracts. In a� accomplished In 'compliance withll cases, the the Consultants' 1cy's Attorney shall certify to Competitive Negotiation ct, the Department 12.30 Disadvantaged Business Enterprise (DBE) Policy 12.31 DBE Policy: The Agency and itseoritractors agree to ensure that Disadvantaged Business Enterprises as defined in 49 CFR Part 26, as arli6rided,•haVe the maximum opportunity to participate in the performance .of contracts and this Agreement, In this regard -jail recipients, and contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 26, as amended, to ensure that the Disadvantaged Business Enterprises have the maximum opportunity to compete for and perform contracts, Grantees, recipients and their contractors shall not discriminate on the basis of race, color, national origin or sex in the award and performance of Department assisted contracts. 12.40 The Agency agrees to report any reasonable cause notice of noncompliance based on 49 CFR Part 26 filed under this section to the Department within 30 days of receipt by the Agency. . 13.00. Restrictions, prohibitions,_Controis,•and Labor Provisions- 13.10 Equal Employment Opportunity; In connection with the carrying out of any project, the Agenoy shall not discriminate against any employee or apPlicanf for• employment because of race,.age, creed, color, sex or national origin. The Agency will take affirmative action to ensure that applicants are .employed, and that employees are treated during employment, withoutregard to their race, age, creed, color, sex, or national origin. Such action shall include, but not be limited to, the following: Employment upgrading, demotion, or transfer; recruitment or recruitment adverttiisin i; layoff or termination; rates of payor otherforms of compensation; and selection for -training, including app e p. The Agency shall insert the -foregoing provision modified only to show the particular contractual relationship in all its contracts In connection with the development or operation of the project, except contracts for standard commercial supplies or raw materials,' and shall, require all such contractors to insert a similar provision in all subcontracts, except subcontracts for standard commercial supplies.or raw materials.. Wnen the project involves installation, construction, demolition, rembval, site improvement, orsimilar•work, the.Agency Shall -Obit"; in conspicuous places:avaifal5lelo '— -employees and applicants for employrnentforproject work, notices to be provided by the .Department setting forth the provisions ofthe nondiscrimination clause. • . . .tr•i •i'. f,,4 ; •I .. • 13.20Title Vt • Civil Rights Act of1$64;t;Execution.of.this.Jointj Participation Agreement constitutes a certification that the Agency will comply with a11''the requirements Imposed byTItle VI of the Civil Rights Act of 1954 (42 U.S.C. 2000d, et. seq.), the Regulations of the 'Federal Department of Transportation issued thereunder, and the .assurance by the Agency pursuant thereto. 13.30 Title VIII - Civil Rights Act of 1 968: Execution of this Joint Participation Agreement constitutes a certification thatthe Agency will comply with all the requirements imposed by Title VIII of the Civil Rights Act of 1968, 42 USC 3601,et seq., which among other things, prohibits discrimination in housing on the basis of race, color, national origin, creed, sex, and age. • • 13:40.Americans with Disabilities qyt,Of 1990.(A)A): Execution ofthis•Joint Participation Agreement constitutes a certification thatthe Agency.wil)"go.[jn.iply'witj all the requirements imposed by the ADA (42 U.S.C. 12102, et, seq.), the regulations of .the federal governmeiitlssued thereunder, and -the assurance by the Agency pursuant thereto, meeeeoe pueuc TRANSPORTATION Pep 1D of 14 ent connection 13.50 Prohibited Interests: The Agency includedter into a contract or inproject, with any officer9dmectornor, employee of with project or any property included or planned to i ee or the officer's, director's r or employee's spouse Agency, or any business entity of which the officer; director or employ or child is en officer, partner, director, or propriktarbr.in which such officer director or employee or the officer's, director's or employee's spouse or child, or any combinetioh‘of them,.'has a material interest. 'Material Interest' means direct or indirect ownership of more than 5 percent of the total assets or capital stock of any business entity, The Agency shall not enter into any contract .or arrangement in connection with the project br anyAerlGy by property or nn included planned to be included in the project, with any person or entity who was represented before the of the Ayen y person who at any time during the immediately preceding two years was an officer, director or employe The provisions of this subsection shall not be applicable to any agreement between the Agency and its fiscal depositories, any agreement for utility services the rates rwhichrfixed or controlled by the government, or any . agreement between the Agency and an agency of s government. 13.6.0 Interest of Members of, or Delegates to; Congress: oor any benefit or dr delega thesinrthe Congress of the United States shall be admitted to any share or part of the Agreement -14.00 .Miscellaneous Provisions: 94.10 •Environmental Rollution: Execution wthnt alf applicable environmental regUlatlons inclution Agreement ponstitutes a ding theon securing securing oft the projectpible be cl s. The A in c swill be solely responsible for any liability in the event of non-compliance securing of any applicable permits. The Agency Ilcable permits, and will reimburse the with applicable environmental regulations, including the se curing of any app .Department for any loss incurred in conriectlon therewith. 14.20 .Department Not Obligated toy" t ird Partlbs: The.Department shall not be obligated or liable hereunder toeny partyscfherlharethe Agency. the making by the Department of any Ito h When n y onstitand t or be construed d asot ived: In no event a waiver by the Department of any breach of covenant or any pto the Agency constitutea ment by the Department while any defaultch which may e then exist, on the shall in 0f theyimpair mAgency, or prejud prand the ejudice right or remedy available to the Department with such breach or default shall exist shall in no way imp respect to such breach or default. If 14.40 How Agreement is Affected bShProvisions Being all not be a acted, nesach anin:stance he rprovision emaindetthis would thenAgreement is held Invalid, the remainder of this Agre.,m . continue to conform to the terms and requirements of.appllceble lave . ;, represents of itst at it hasation for the 14.50 Bonus or Commission: Byf�is�fonfor'the purApose of obtaining ng an Agency that it not paid and, also, agrees sotto pay, any bonus or cdrn , financing 'hereunder. uire e 14:60 State or Territorial provision thereof, perform any other ebt ordo any ng in the Agreement other thing In contravention oency to nserve of any applicable State enforce A will at once notify compliance with any any of the provisions P violate be bye Agene cy will at andc the theaw. Department that If any otohderthat apprropriatecchanges tand modlfiic tionls may beStmadete law, tyt g,ncY Agency -to ncy artthe end in thatwritinh In proceed es soon .es possible with the project. Agency -to the the Agency may p 725A90.0a PUBLIC TRANSPORTATION Page 11.a114 { 14,70 Use and Maintenance of Projedt Facilities and Equipment: The Agency agrees that the project facilities .and equipment will be used by the Agency to provide or support public transportation for the period of the useful life of such facilities and equipment as determined in accordance with general accounting principles and approved by the Department The Agency further agrees to maintain the project facilities and equipment in good working order for the useful life of said facilities or equipment, 14.71 Property Records: The Agency agrees to maintain property records, conduct physical inventories and develop control systems as required by 49 CFR Part 18, when applicable, 14.80 Disposal of Project Facilities or E.qu ipment: If the Agency disposes of any project facility or equipment during its useful life for any purpose except its replacement with like facility or equipment for public transportation use, the Agency will comply with •the terms of.49 CFR Pari,18 relating to property management standards, The Agency agrees to remit to the Department a proportional amount`bf:the proceeds from the disposal .of the facility or equipment, Said proportional amount shall be determined on the basis of the ratio of the Department financing of the facility or equipment as provided in this Agreement, 14,90 Contractual indemnity: To the extent provided by law, the Agency shall indemnify, defend, and hold harmlessthe Department and all of its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission, or negligent act by the Agency, its agents,. or employees, •during the performance of the. Agreement, except.that neither the Agency, Its agents, or its employees will be liable under this paragraph forany claim, loss, damage; cost, .charge, br.expensearising out of any act, error, omission, .or negligent act by the Department or any of its officers, agents, or employees during the performance of the Agreement. Wnen the Department receives anotice of claim for damage that may have been caused bythe Agency in the performance of services required under this Agreement, the Department will immediately forward the claim .to the Agency The Agency and the Department .vvill gya)uate.the claim and report thelriindings •to each other within fourteen (14) working days and will jointly discuss•optloes: in defending the claim. After reviewing the claim, the Department will •determine whether to require the participation of the Agency In the defense of the claim or to require that the Agency defend the Department in such claim .as described in this section. The Department's failure to promptly notify the Agency of a claim shall not act as a waiver of.any right herein to require the participation In or defense of the .claim by Agency. The Department and the:Agency willeach pay its own expenses for the.evatuation, settlement negotiations, and trial, if --- — anyOW—Ree-Of ohiybri:e party partfcipatesin-the-defense oche -claim attrial, that -party -is -responsible -for -all. -expenses_.. at trial. •• ' 15.00'Plans and Specifications: in the eventthat,this Agreement involves the purchasing of capital equipment or the constructing and equipping of facilities; ttie&Agen'cy shall submit to the Department for approval all appropriate plans and specifications covering the projeet.I'li'e Department will review all plans and specifications and will issue to the Agency written approval with any approvadOions'or fi'he proJectand comments or recommendations concerning any remainder of the project deemed appropriate. After resofution of these comments and recommendations to the Department's satisfaction, the Department Will issue to the Agency written approval with said remainder of the project. Failure to obtain this written approval shall be sufficient cause for nonpayment by the Department as provided In 8.23. 16.00 Project Completion, Agency Certification: The Agencywill certify in writing on or attached to the final invoice, that the project was completedin accordande with applicable plans and specifications, is In place on the Agency facility, that adequate title is in the Agency and that the;project is accepted by the Agency as suitable for the intended purpose,,le 17.0.0 Appropriation of Funds; . • 17,10 The.State of Florida's performance' ani t pbllgation to pay under this Agreement is contingent upon an annual appropriation bythe Legislature.`.• '. 725-030A3 PUBLIC7RANBPORTA ON gaga 12 of 14 17.20 Multi -Year Commitment: In the event this Agreement is in excess of $25,000 and has a term for a period of more than one year, the provisions of Chapter 339.135(6)(a), F.S., are h any contract incorporated: po at e± "(a) The sDe epar Bent, during any fiscal year, shall not expend money,, incur any liability, or enter iolves the expenditure of money In excess of the amounts budgeted as available for expenditure during such fiscal year, Any b contract, verbal or written, made In violation ofthls subsection is null and void, and no money may Paid contract, The Department shell require a statement from the comptroller of the Department that funds are available prior to of intonany suchr contract or exceeding .other binding ya,i ut any contract so ommitment of madeNothing shall be executory only forshall the value of the making of contracts for periods exceeding 1 y services to be rendered or agreed to be paid for`:ih succeeding fiscal years: and this paragraph shall be incorporated verbatim in all contracts of the Department which are for an amount in excess of 25,00D dollars and which have a term for a period of more than 1 year." -18.00 Expiration of Agreement: The Agency agrees to complete the project on or before 6/30/2015 , If the Agency does not complete the project within this time period, this Agreement will expire unless an extension ofthe time period is requested b Expiration of this -Agreement adgranted in nl write ing by thed termination e Secretary or Designee of the project and the procedure established In Section 9.00 of this Agreement shall be initiated. • 18.10 Final invoice:The Agency must:Submit the final involce on'this project to -the Department within:120 days after the expiration of this Agreement. Involces:submitted 'afterthe 120 daytime .period will not be paid. 19.00 Agreement Format::All words used herein in the singularrtorrn shall extend to and include the:plural. All words used in the plural form shall extend to and .include the singular.. All words .used in any gender -shall extend to and include all genders. 20• .00 Execution of Agreement: This -Agreement may be simultaneously executed in .a minimum of two counterparts, each of which so executed shall be deemed to'be an original,' and such counterparts together shall constitute one in the same instrument 21.00 Restrictions on Lobbying: • :21.10 Federal: The Agency agrees thafno federal 'appropriated funds have been:paid or will be paid by or on behalf of the Agency, to any person for infjuencirrg orattempting to influence any officer or employee of any federal agency,• a Member of Congress, an officer brlempioyee.of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, -the making of any -federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement attempting• If or anytings otnfuenc feral ofncerr or empted loyee of any federal s have beengaen y, a Memb r of C ngrress, an officer orby the Agency to any person for cemployee of toor Influence an P Congress, or an employee of a Member of Congress in connection with this Joint Participation Agreement, the undersigned shall complete and submit Standard Form -La, "Disclosure Formao Report Lobbying," in accordance with its instructions, • subawards The Agency shall require thatthe language °ntiundee grants, oansinclud in he award documents for and operative agraemelnts) and that allati tiers (including subcontracts, subgrants, and contracts subreolplents shall certify and disclose accordingly. . 21.20 State: No funds received pursuant to thls contract may be expended for lobbying the .Legislature or a state agency, • 726.036-06 PUBLIC TRANSPORTATION . O VID Page 13d14 providing goods and services to the 22.00 Vendors Rights; Vendors (in thine ocument frames. Upontified as Agency) re receipt;the Department has five (5) working days to Department should be aware of the following' tipi , purchaset order or contract specifies otherwise. voucher to the order of Financial specifies The e. inspect and approve the goods and servlces`uriless the bid specifications, 0 The Department ehasd 20 days to deliver a request for payment (voucher) days are measured from the leper of the date the Invoice Is received or the goods or services are received, Inspected and approved. If a payment is not available pena �iD days after receipt of the Sectionn211ce and 5 422(3)(b),1F.SJnwpi be due andon and pproval of payabieait}n goods onn to the n a separate interest thet gency i Interest p n provision applies after a 35 day time period to he to the invoice amount to the Agency. The Interest penally p dollar will not be enforced unless the Agency re Agency because of vendor reunless preparation the A enl in a providers, as dent I by Invoices which haveetolbes to a to an one (1) completed later invoice is provided result in requests payment invoices which to be returned to Ag Y e delay in the payment.The invoice payment requirements do not start until a properly P Department. . a merit s from the A Vendor Ombudsman has-been established-withinot beDxperiencing problemslServices. The ln obtaining timely 1psof-this f-thi �i individual Delude enng as an doOm for Agencies whbe Y .Department. The Vendor Ombudsman may be contacted at (850)413-5516 or by calling the Department of Financial Services Hotline, .677-693-5236. 23.00vendor Public Entity Crime: A. person oraffiliate who has been to placed on the de any goods vic services toga public entitcony, aor public work, may not s fbr i public entity contract may not submit entity construction or repair of a public building p -may not submit a bid on.a contract with a p norm work as a contractor, may not submit bids on leases of real property to a public entity, may not be awarded or p� :rovided in s. 257:017, F.S. for CATEGORY TWO for a.period of 36 supplier, subcontractor, or consultant underra'; ontract with any public entity, and may not transact business Withany public entity in excess.of the -threshold a ot�n,t months from the date of being -placed on the7'6bnvlcted:vendorlist. laced on the discriminatory vendor list may not submit 24:00 Discrimination: An entity or affiliate who has 1lFe�1ltlb� may not submit a bid on a contract with a public a - -- — --a-bid-onra- construction videarty-goods-ors building o Rir eublc theenconstrot be orrepairof erforrm building as,a contractor, supplier, subcontractor, s or consultant nTeases under a contract .public entity, may not be awarded or p ublic�enfity. with any public entity, .and may not transact business with any p •. 72bo30-08 PUBLIC TRANSPORTATION 01t1U Pege14 of 14 Financial .Project No. 42274219401 Contract No. APY07 Agreement Date IN WITNESS WHEREOF, the parties hereto'have.caused'these presents be executed, the day and yearfirst above written. AGENCY City of Miami - Public Facilities/Asset Management AGENCY NAME SIGNATORY (PRINTED OR TYPED) SIGNATURE FDOT See attached Encumbrance Form for date of Funding Approval by Comptroller LEGAL REVIEW DEPARTMENT OFTRANSPORTATIDN DEPARTMENT OFTRANSPORTATION Director of Transporation Development -'DB TITLE Hen , Dionne G. From: The Job F19B9WMR Sent: Wednesday, May 26, 2010 4:03 PM To: Henry, Dionne G. Subject; FUNDS APPROVAL/REVIEWED FOR CONTRACT APY07 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FUNDS APPROVAL Contract #APY07 Contract Type: AG Method of Procurement; G Vendor Name: MIAMI, CITY OF Vendor.ID: VF596000375097 Beginning date of this Agmt': 05/26/.10 Ending date of this Agmt: 06/30/16: Contract Total/Budgetary Ceiling: ct.= $1,096,000.00 Description: Build a terminal facility for the Watson island Air. Transpor Cation Facility ORG-CODE *ED *OBJECT *AMOUNT *FIN PROJECT •*FCT *CFDA (FISCAL YEAR) . *BUDGET .ENTITY .*CATEGORY/CAT YEAR AMENDMENT ID *SEQ- *USER ASSIGNED ID *ENC.LINE(6S.)/STATUS • Action: Funds have. been: REVIEWED* 55 0E2020E28 *PT *750004 * 1096000.00 *42274219401 *637 * - - -•---- -- ----5�T00100-_`_ —..s: ----- ---- 08$9'1-9-1fl 2014 * 09 A001 *00 .*Funds Approval and encumbrance processing is contingent upon Annual Legislative appropriation. • TOTAL AMDUNT:^ *$ 096 000.00 FUNDSAPPROVED/REVIEWED FOR ROBIN'M. NAITOVE, CPA, COMPTROLLER DATE: 05/2E/2010 FINANCIAL PROTECT NO.: 42274219401 CONTRACT -NO.: APY07 EXHIBIT "A" PROJECT DESCRIPTION A-D RESPONSIBILITIES This exhibit forms an .integral part of that certain Joint _Participation Agreement between the State of Florida, Department of Transportation and City of Miami —.Public Facilities/Asset Management 444 SW 2°a Avenue, 3`d Floor .Miami, FL 33130 is referenced by the above Financial Project Number. .PROTECT LOCATION. Watson Island Air Transportation Facility PROTECT DESCRIPTION: SPECIAL CONSTh,RATIONS BY AGENCY: — The audit report(s) required in. -paragraph 7.60 of the Agreement shall include a schedule of proj ecf assistance ill rt will reflect the Depai tuient's contract number, Financial Project Number and the Federal Identification number, where applicable, and the amount of state funciif g action (receipt and disbursement of funds) and any federal or local funding action and the funding action any other source withrespect to the project. The Agency must submit an invoice to the Department no later than one hundred and twenty days (120) after the period of services covered by said invoice. Failure to subrriit invoice in a timely manner wil1 result in nonpayment by the Department. The Agency shall submit two (2) copies of a Single Auditieport as required .and shown in Paragraph 7.60. Failure to provide the required report will result in non-payment by the Department. a.; Funds encumbered for this contract will be forfeited if .not expended by Mardh 31 of the ffth fiscal year following the fiscal year of the encumbrance. Forfeiture of said finds may further result in termination or voidance of the contract. SPECIAL CONSIDERATIONS BYDEPARTMENT: None FINANCIAL PROJECTNO.; 42274219401 CONTRACT NO.; APY07 EXFIIBIT "B" PROJECT BUDGET This exhibit forms an integral,part of that certain Joint Participation Agreement between the State of Florida, Department of T i-sp6rtation and City of Miami -Public Facilities/Asset Management 444 SW 2nd A.venue, 3rd Floor Miami, FL33130 referenced by the above Financial Project Number, I, ESTIMATED PROJECT COST: $6;704,400.00 ESTIMATED TOTAL-PRO7ECT COST: $6,704,400.00 - PARTICIPATION: MiaximunaFederal Participation ( %) or $ FTA, FAA Agency Participation . o _ $ -... _.._.—. — - - -- = Zn Kind.._ —.. __ : .: (83%) $5,608,400.00 Cash `-" .. . Other Maximum Depa_ment Participation, . Primary (DS)(DDR)(DIM)(PORT) (17%) up to $1,096,000 Federal Reimbursable U)(FRA)(D T Z'A) ( %) or $ LocalRennbursable (DL) ESTIMATED TOTAL PROTECT COST $6,704,400.00 . "lt is the intent of the D artment,to'reim urse Ile Agency 50% of the total non-federal share of eligible project cost up to the Depart' ents�mex.imr n participation amount", STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION EXHIBIT "C" AVIATION PROGRAM ASSURANCE 725-04D-33. AVIATION OGC-03/09 FINANCIAL PROJECT NO.: •42274219401 EFFECTIVE DATE: CONTRACT NO.: APY07 : General 1. The assurances herein shall form an integral part of the Joint Participation Agreement (Agreement) 'between the State of Florida, Department of Transportation (Department) and the airport sponsor, whether county or municipal government body or special district, such as an Airport Authority e collectively referred to as "Agency"). 2. These assurances delineate the obligations of the parties to this Agreement to ensure their commitment and compliance with specific provisions of Exhibit A, "Project Description and responsibilities" and Exhibit B, `Project Budget", as well as serving to protect public investment in public - use airports and the continued viability of the Florida Aviation System. 3. The Agency shall comply with the assurances as specified in this Agreement. 4. The terms andassurances of this .Agreement shall remain in full force and effect throughout the useful life of a facility developed; equipment acquired; or•project items Installed within a facility -for an .alrport development or noise compatibility program project, but shall not Exceed 20 years from the effective date of this Agreement, . 5. There shall be no limit on the duration on the terms and assurances of this Agreem.ent regarding Exclusive Rights and Airport Revenue so long as the property is used as a public airport- . 6; There shall be no limit' on -the duration of the terms and assurances of this Agreement with respect to real property acquired with funds provided by the State of Florida. 7. Subject to appropriations, the* Department shall continue to comply with its financial commitment to thls .project under the termscomply °� -this the:#errmstof the such time as Agreement and/or these assurances. Department may determine that the Agency has failed to mp y '8. An Agency that has'been determined by the Department to have failed to comply with the terms of the J -Agreement-and/o.•fhese assurances sna�ll b-e notified; -in -writing, 'by the -Deparfirnertt identifying specifics of the noncompliance and any corrective action by the Agency to remedy the failure. 9. Failure by the Agency to satisfactorily remedy -the non-compliance shall absolve the Departments continued financial commitment to this project and immediately .require the Agency to repay the Department the full amount of funds expended by the Department on this .project. 10. Any history of failure to conipltiilth'tiie •terms of an Agreement and/or assurances will jeopardize the Agency's eligibility for further stai'e'f finding of airport projects by the Department. B. Agency Compliance Certificatibri; 1. General Certification: The Agencyhereby certifies, with respect to this project, it will comply, within its authority, with all applicable, current laws and rules of the State .of Florida and local government, as well as .Department policies, guidelines, and requirements, including but not limited to the following: a. Florida Statutes (F,S,) • Chapter 163, F.S., Local Government Comprehensive Planning and .Land .Development Chapter 329, F.S., Aircraft: Title; Liens; Registration; Liens • Chapter 330, F.S., Regulation of Aircraft, Pilots,.and Airports Chapter 331, F.S,., Aviation and Aerospace Facilities and Commerce Chapter 332, F,S., Airports and Other Air Navigation Facilities • Chapter 333, F.'S., Airport.Zoning b, Florida Administrativ.e,Code•:(.FAC) •• Chapter 9.J-5,:FAC, i aview .of Comprehensive Plans and .Determination of Compliance Chapter 1--SD;::FAC,. Airport Licensing, Registration, and Airspace Protection • .Section 62-256.300(5) FAC, Open Burning, Prohibitions, Public Airports Page S of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION EXHIBIT "C° AVINntiN PROGRAM ASSURANCE 725-040.15 AVIATION OGC - 03/09 • Section 62-701.320(13),'FAC, Solid Waste Management, Permitting, Airport Safety c. Local Government -Requirements • Airport Zoning Ordinance • Local Comprehensive Plan d. Department Requirements • Eight Steps to Building a New Airport • Florida Airport Financial Resource Guide • Florida Aviation Project Handbook •• Guidebook for Airport Master•Planning • Guidelines for Plan Development 2. Construction Certification.:.-1V`Agency_hereby certifies, with respect to arala co stru tion-rel local, ted project, that all .design plans rid,.. pecifibetions will comply applicable professional standards, as weft as Federal Aviation Administration (FAA) Advisory Circulars (AC's) and FAA Issued waivers thereto, including but not limited to the following: a. Federal Requirements • FAA AC 70/746D-1, Obstruction Marking and Lighting • FAA AC 150/5300-13, Airport Design b• Local. Government Requirements Local .Building Codes Local Zoning Codes. c. Departrnent.Requirements,. • Manual of Uniform.;minirri n Standards for Design, Construcfon and Maintenance for Streets and Highwa •S'(CorrimorilvReferredto as the "Florida Green Book") • Manual on UniforrriTramc Control Devices Section 14-50.007, Florida Administrative Code, 'Airfield Standards for Licensed Airports" • Standard Specifications for 'Construction of General Aviation Airports 3• Land Acquisition Certification: TheAgency hereby certifies, regarding land acquisition, that It Will comply iwith applicable federal and state policies, regulations, and laws, including but not limited to the _ ..._ . — ._ — ..__. . _. — - — a. Federal Reme quirents.. . • Uniform RelocatiomAssistance and Rea) Property Acquisition •Policies Act of 1970 • National -Environmental Policy of 1969 • FAA Order •5050,4,. National Environmental Policy Act implementing Instructions -for Airport Projects :` :: •; • •'FAA Order 5�10Q:37S, .Ladd Acquisition and Relocation Assistance for Airport Projects b. Florida Requirements • Chapter73, F;S.,:Eminent Domain (re: Property Acquired Through Condemnation) Chapter 74, F.S., Proceedings Supplemental to Eminent Domain (re: Condemnation) • Section 286.23, F:S., Public Business: Miscellaneous Provisions 1. C. .• Agency Authority legal authority orAut to enter into Agency Agreement and commit to this Cprojeck that a�resoluti n, motioan, t for similart has e legal has by to nas an official authorizing action g been duly adopted Iydirg as d 'ran es contained ttherein, andodirecting and authorizing the personizing this Agreement,„ , person identified as the official re��;asentative of the governing body to act on its behalf with respect to this Agreement and to provide an.y;aqidltional information. as may be required. 2. Financial Authority: The Agency hereby ee�l! coth respect sts which are nrs otproect paid by the U.S. Governm nt , that it has sufficient funds available for that portion of project )ect or the State of ;pthatct, which itrent will and s available that authorityture hasbeenon and granted byntheance of a airport Items funded by thisproject, • sponsor governing body to commit those funds to this project Page:2 of.9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION EXHIBIT "C" AVIATION PROGRAM ASSURANCE 725-04D-15 AVIATION OGC-03/09 D. Agency Responsibiiit es • The Agency hereby certifies it currently complies with or will comply with the following responsibilities: 1. Accounting System . a. The Agency shall create end rheintain a separate account to document all of the financial transactions related to the air ort as a,distinot entity. b. The. accounting record '0110. be' kept by.•the Agency or its authorized representative in accordance with Generally Accepted 'Accounting Principles and in an accounting system that will facilitate an effective audit in accordance with the Single Audit Act of 1984. c. The Department has the right to audit and inspect all financial records of the airport upon reasonable notice. .2. Good Title a. The Agency holds good title, satisfactory to the Department, to the airport .or site thereof, or gives assurance, satisfactory to the Department, that. good title will be obtained. b. For noise compatibility program projects undertaken on the airport sponsors property, the Agency.holds good title, satisfactory to the Department, to, that portion of the property upon which state funds will be expended, or gives assurance, satisfactory to the Department, that good title will be obtained. • 3. Preserving Rights and Powers'. a. The Agency will not take or permit any action which the terms oerate to ancesrof.thisfAgreemehn e rights and powers necessary .to_perform _) or all of without the written approval of the Department Further, it will act promptly to acquire, extinguish, or modify, in a manner acceptable to the Department, any outstanding rights or claims of right. of others which would interfere with such performance:bythe Agency. b. If an arrangement is made for management. and operation of the airport by any entity or person other than the Agency or an employee of the Agency, the Agency will reserve sufficient rights and authority to ensure that the airport will be operated and maintained in accordance with the terms and assurances of .this Agfeemeni„ 4. Hazard .Removal and .Mitigati_ ;, ': the Agency will clear and protect . For airport hazards located on:airport controlled property, Including.__ terminal altspace reiattired�for instrurTient and visual-operationst marking, lighting or established minimum flight altitudes) by removing, lowering,relocating, otherwise"mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards. . the Agency will work in b. For airport hazards not located on airport controlled property; conjunction with .the governing public authority or private land owner of the property to clear and protect terminal required rremoving, d visual operations at airport (including established inimum flight. atituds)by: owerig,relocating,marking, or lightingr otherwise mitigating existing airport hazards and by preventing the establishment or creation of -future orairport hazards.. ,IThe pursue available Agency may enter into an agreement potentialth surrounding emedies to remove hazards to aiSproperty navigation. owners owne 5. Airport. Compatible LandeUse a. The Agency assures that appropriate airport zoning ordinances are in place consistent with Section 333.03, F:S., "Airport Zoning"., or if not in place, that .it will take appropriate action • necessary to ensure local government adoption of an airport zoning ordinance .or ifiteribCal agreement with another local government body having an airport zoning ordinance, consistent with the provisions of Section 333.03, F.S. b. The Agency assures that dangeroill us to navigarove or bleose any ai pace ormpted alteration or creation of that would adversely affect the objects, natural or man-made, current or future levels of airport operations. ore any attempted change in local land use c. The Agency assures'ttiat-lt will disapprove or opp development regulatiofi, hat rvbuld adversely affect the current or future levels of airport operations by creation.ai•ibxpansion of airport incompatible land use areas. • Page 3 of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION EXHIBIT"C" AVIATIPN PROGRAM ASSURANCE 725.040-15 AVIATION OGC= 03/D9 6, Consistency with Local Government Plans a. The Agency assures the project is consistent with the currently existing and planned future land use development plane -approved bythe local government having jurisdictional responsibility for the area surrounding theiairport. b. The Agency assures that it has given fair consideration to the interest of local communities and has had reasonable consultation with those •parties affected by the project. c. The Agency will .consider and take appropriate actions, If deemed warranted, to adopt the current, approved Airport Master Plan into the local government comprehensive plan. 7, Consistency with Airport Master Plan and Airport Layout Plan a. The Agency assures that;any project, covered by the terms and assurances of this Agreement, . is consistent with the .current;pproved Airport•Master Plan. • b. The Agency assures thatithis project, covered by the terms and assurances of this Agreement, is consistent with the current,approved Airport Layout Plan (ALP), which shows: (1) The boundaries of the airport and all .proposed additions thereto, together with the boundaries of all offsite areas owned or controlled by the Agency for airport purposes and proposed additions thereto; (2) The location and nature of at existing and proposed airport facilities and structures (such as runways, taxiways, aprons, terminal buildings, hangars, and roads), including all proposed extensions and reductions of existing airport facilities; and . (3) TheJocation of all existing and proposed non -aviation areas on airport property and of all existing improvements thereon. • c. The Agency assures that it will .not-make'or permit any changes or alterations on•the airport or any of its facilities that.are.'not consistent with the Airport Master.Plan and the Airport Layout Plan, as approved by the Department. d. Original Airport Master9Plansi .arid Airport Layout Plans and each .amendment, revision, or modification thereof, shalf'be-subjectto the approval of the Department. 8. Airport Financial Plan • .a. The Agency assures that it will develop and maintain a cost -feasible financial plan to accomplish the projects necessary to achieve the proposed airport improvements identified in the _..._ _.Airport_Mas.teLPlan_and_lepi>ctedin .the.lAi[Rort Layout Plan,. and, any. tad etes thereto,. ._ __ (1) The financial plan shall be a part of the Airport Master Plan. (2.) The financial plan shall realistically assess project phasing considering availability of state and Idcal fuhding and likelihood .of federal funding under the FAA's priority system. (3) The financialh•plan :Shia'', not include Department funding for projects which are • inconsistent withrthehfocaf government comprehensive plan. b, All project cost estimafekconteinedi In the financial plan shall be entered Into and kept current in the Joint Automated Oapi♦al Improvement Program (JACIP) onlinewebsite. 9. Airport Revenue The Agency assures that all revenue generated bythe airport wit be expended for capital improvement or operating • costs df the airport; the local airport system; or other local facilities which are owned or operated by the owner or operator of the airport and which are directly and substantially related to the air transportation of passengers or property, or for environmental or noise mitigation purposes on or off the airport. 10, fee and Rental .Structure a. The Agency assures:that.it will maintain a.fee and rental structure for facilities and services at the airport that will in 'the airport as self -:sustaining as possible under the circumstances existing at the particular airport. .b. If this Agreement': results in ai'faclllty that will be leased or otherwise produce revenue, the Agency assures that the' price charged for that facility will be based on the falr•market value, c. The Agency assures that property or facility leases for aeronautical purposes, shall not exceed a period of 30 years. Public -Private Partnership for Aeronautical Uses Page 4 of 9 .•ir.9r^ STATE OF FI.OfjIOA OEPARTMENT OF TRANSPORTATION .EXHIBIT "C' AVIATION PROGRAM A55URANCE 725-040.15 AVIATION OGC-03%09 a. If the airport owner or operator and a person or entity that owns an aircraft or an airport tenant or potential tenant agree that an aircraft hangar or tenant -specific facility, respectively, is to -be constructed on airport property for aircraft storage or tenant use at the expense of the aircraft owner or tenant, the airport owner or operator may grant to the aircraft owner or tenant •of. the facility a lease that is subject to such terms and conditions on the facility as the airport owner or operator may impose, subject to approval by the Department. b. Duration of the terms or conditions in Section D11 a shall not exceed a period of 30 years. 12..Economic Nondiscrimination.- a. The Agency assures that'."it will make the airport avalabllef as an s and airport classfor sopublicf use i n reasonable terms withoutrL1Injust discrimination to all types, activities, including con -net -alai aeronaufical activities offering services to the public. (1) The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe .and efficient operation of the airport (2) The sponsor may prohibit or limit any given type, kind .or class of aeronautical .use of the airport if such action is necessary for the -safe operation of the airport or necessary to serve the civil aviation needs of the public. • • b. The Agency assures that each airport Fixed -Based Operator (FBO) shall be .subJect to the • same rates, fees, rentals, and •other charges as are uniformly applicable .to all other FBOs making the same or similar .uses of such airport and utilizing the same or similarfacilities. • %'ism 13. Air and Water .Quality Standards • The Agency assures that in.projects:irivolving: airport pidopenaa�edr unwso as to comply with appl,cabletla on that the project will be located, designed, constructed,and and water quality standards. 14. Operations and Maintenance' a. The Agency assures that the airport and all facilities, which are necessary to serve the aeronautical users of the airport, shall be .operated:at all times in a safe and serviceable condition and in accordance with the minimum standards as may be required or .prescribed by applicable _ ..federal. and state agencies 'for maintenance .and .operation, as wall as minimum standards established by the Department�for State -Of Flbrida licenS sing• -as a-pubfic e ai " r. action therm . (1) The Agency: assures that it will not cause or permit any activity which would .interfere with its use for.airport purposes. 0 to -temporarily orarily close the airport for non (2) Except.in•eriergency:s.ituations, any proposalp aeronautical purp,ps?s 'Must first.be approved by the Department. airmen of (3) The Agency assures that It will have arrangements for promptly notifying any condition affecting aeronautical use of the airport. for b. onauNothingis contained herein shall e iods when adversoonstrued to e weather conditions uire that the rin erferbe eewithdsafe aeronautical use during temporary p airport operations, 15. Federal Funding Eligibility a• The Agency assures it will take appropriate actions -to maintain federal funding eligibility for the airport and ft will avoid ay action that renders the airport ineligible for federal funding. b. Ineligibility for federl.;runding; of, airport projects will render the Agency ineligible for state funding of airport proJe411.;; 16.•Project Implementation . ex enditures or incurring obligations pertaining to a. The Agency assures that it will begin making p this airport project within one year after the effective date of this Agreeent enod, subject to approval b. The Agency may request a one-year extension of this one-year P by the Department District Secretary or designee. c. Failure of the Agency to make expenditures, incur obligations or receive en approved extension may allow the Department to terminate this Agreement. Page.5 of 9 STATE OF FLORIDA DEPARTMENT. OF TRANSPORTATION EXHIBIT"C" AVIATION PROGRAM ASSURANCE 72S-040.1S AVIATIDN OGC- 03/09 17. exclusive Rights The Agency assures that it will not permit any exclusive right for use of the airport by any person providing, or intending to provide, aetanaUtical•services tothe public. 18. Airfield Access e. The Agency assures that It will -not grant or allow general easement or public access that opens onto or crosses the airport runways, taxiways, flight line,.passenger facilities, or any area rr, used for emergency equipment, fuel, supplies, passengers, mail and freight erationare communications, utilities, and landing systems,' including but not limited to flight op ground services, emergency services, terminal facilities, maintenance, repair, or storage, except for those normal airportproviders responsible for standard airport daily services or dudng special events at the airport open tothe public with limited and controlled access. b. The Agency assures that it will not grant or allow general easement or public access b any portion of the airfield from adjacent real property which is not owned, operated, or otherwise controlled by the Agency without prior Department approval. • 19.Retention of Rights and Interests The agency will not sell, lease,.encumber, or otherwise transfer or .dispose of any part of its title or other interests In the real property shown as airport owned or controlled on the current airport layout plan without prior written approval .by the Department. It wilt ndt sell, lease, encumber, terminate, waive, or otherwise transfer or dispose of any part of its title, rights, or other interest in existing noise easements or navigation easements on any property, airport .or .non airport, •without prior written approvalby e Department_ These :assurances shall not limit the Agency's right to lease airport property -for airport - compatible purposes. 20. Consultant, Contractor, Scope, and Costs a. The Department has the. right :to disapprove the Agency's employment of consultants, contractors, and subcontraPtors If or -all or any part of this project If the specific consultants, contractors, or subcontra torrs'have .e record Of poor project performance with the Department. b, .Further, the Departmerii maintainsthe right to disapprove the proposed. project scope and cost of professional services..;: ' . ��...-Plan ning-Projects • If this project involves planning or other aviation .studies_, the Agency assures that it will: • a. Execute the project per the approved project narrative or with approved modifications. b. 'Furnish the Department with. such periodic project and work activity reports as indicated in the approved scope of services, public disclosure, c,'Make such material available for public review, unless exemptfrom p (1) Information' related td .airport security is considered restricted information and .is exempt from public aissemination'perSections 119.071(3) and 331.22 Florida .Statutes. (2) No material prepared under thls Agreement shall be subject to copyright in the United States or any pther.,country. d. Grant the .Department;:unrestricted authority to publish, disclose, distribute, and otherwise .use any of the material prepared in connection withthis Agreement. e. If the project involves; developing an Airport Master Plan or an Airport Layout Plan, and any updates thereto, It will be consistent with provisions of the Florida •Aviation System Plan, will identify reasonable future growth of the .airport .and the Agency will comply with the Department airport master planning guidebook, including: . •(1) Provide copies, in electronic. •and edltable format, of final project materials to the Department, including computer -aided drafting (CAD) files of the Airport Layout Plan. (2) Developa cost -feasible financial plan, approved by the Department, to accomplish the protects described; in the Airport Master Plan or depleted in the Airport Layout-Plan,.and any updates there$. !The, cost -feasible financial plan shall realistically assess project phasing consii etf g avaflabl•lity of.state and local funding and federal funding under the FAA's priority t rn. •: . Page*6 of9 STATE OF FLORIDA DEPARTMENT OFTRANSPORTATION EXHIBIT "C' AVIATION PROGRAM ASSURANCE 725-040-15 AVIATION OGC - 03/09 (3) Enter all projects 'contained in the cost -feasible plan in the .Joint Automated Capital improvement Prograrn (JACIP). f, The Agency understands and agrees that Department approval of this project Agreement or any planning material developed as part of this Agreement does not constitute or imply any assurance or commitment on the part of the Department to approve any pending or future application for state aviation funding. g. The Agency will submit master planning draft and final deliverables for Department and, If required, FAA approval prior to submitting any invoices to the Department for payment. h. The Department may extend the 5-day requirement for the approval and inspection of goods and services to allow for adequate time for review (reference Section 215.422(1), F.S.), ,22.'Land Acquisition Projects ,,;K If this project involves the purchase of1real. property, the Agency assures that it will: a Laws: Acquire the land in accordance with federal and state laws governing such action. b. Administration: Maintain direct control of project administration, including: (1) Maintain responsibility for all related contract letting and administrative procedures, (2) Secure written Department approval to execute each agreement for the purchase of real property with any third party. • (3) Ensure a qualified, State certified general appraiser provides all necessary services .and documentation. (4) Furnish the Department .with •a projected schedule of events and .a cash flow projection within20 calendar days after completion.of•the review appraisal.. (5) Establish a project accorint for the purchase of the land. . • (6) Collect and disburse federal, state, and local project funds. c. Reimbursable Funds: If funding conveyed by this Agreement is reimbursable for land purchase in accordance"v✓ith Chapter 332, Florida Statutes, the Agency will .comply with the following requirements: (1) The Agency shall apply for a FAA Airport Improvement Program grant for the land purchase within 60 days of executing this Agreement. .. (2) if federal funds are received for. the land purchase,. -the Agency shall notify the • Department, in writing, within 14 calendar days of receiving the federal funds and Is — — - -° responsible for -reimbursing the -Department within 30:-calendar-..days toaacbieae. normal project federal, state, and local funding shares -per Chapter 332, Florida Statutes. (3) If federal funds are not received for the land purchase, the Agency shall reimburse the Department within :30 calendar days after the reimbursable funds are -to achieve normal • project state and loi✓al funding shares as described in Chapter 332, Florida Statutes, (4) If federal' furiis�are riot 'received for the land purchase and the -state share of the purchase is less Than or equal'to.normal state and local funding shares per Chapter 332, • F:S•, when reimbursable funds are due, no reimbursement to the Department shall be required. d. New Airport: If this project,involves-the purchase of real property forthe development of a new airport, the Agenoy assures that it will: (1) Apply for federal and state funding to construct a paved Tunway, associated aircraft parking apron, and connecting taxiway.within one year of the date of land purchase. (2) Complete an Airport Master Plan within two years of land purchase. . (3) Complete:airport construction for basic operation within 10 years of land purchase. e. Use of Land: The Agency assures'that it shall use the land for aviation purposes in accordance with the terlps and assurances ofthis Agreement within 10 years of acquisition. .< f..Dis osal of Land,: Fbtdispos4l. of real property purchased in.eocordanoe with the terms and assurances of this Agreement, the Agency assures that it will comply with the following; (1) For land :purchased 'for airport deveiopment or noise compatibility purposes, the Agency will, when the land is no longer needed for such purposes, dispose of such land at fair market value and/or make available to the Department an amount equal to the state's proportionate share of its fair market value. (2) Land shall be considered to be needed for airport purposes under this assurance if: Page'7 of STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION EXHIBIT "C" AVIATION PROGRAM ASSURANCE 725-oaass AVIATION OGC—.03/09 (a) -It-serves aeronautical purposes, e.g. runway protection zone or as a noise buffer. (b) Revenue from .uses of such land contributes to airport financial self- sufficiency. • (3) Disposition of land under.Section 22f(1) or (2), above, shall be subject to retention or reservation of any•interest on right therein needed to, ensure such land will only be used for purposes compatible with noise levels related to airport operations. (4) For disposal of.•r'eal property purchased with Department funding: (a) The Agency will reimburse the Department a proportional amount of the proceeds of the sale of -any airport -owned real property. (b) The proportional amount shall be determined on -the .basis of the ratio of the Department financing of the acquisition of the real property. multiplied against the sale amount, and shall be remitted to the Department within ninety (90) days of closing of sale. (c) Sale f teal byy ppacquiredall, and thecontract for sale funds hmll be at fair market ust be approved i n value as determined appraisal, advance by the Department, • (d) If any .portion'of the proceeds from the sale to the Agency is non -cash considerations, reimbursement to the 'Department shall include a proportional amount based on the value of the non -cash considerations, 23. Construction Projects: The Agency assures that it will: - a. Project Certifications: Certify project compliances, including (1) Consultant and contractor selection comply with all .applicable -federal, state and local laws, rules, regulations, and policies, (2) Ali design plans and specifications comply with federal, stale, and professional standards and applicable FM advisory circulars, as well as the minimum standards established by the Department for State of Florida licensing.as .a public -use airport. (3) Completed construction complies with all applicable local building codes. (4) Completed construction complies with the project plans and specifications with oertifcation;of that'fact by the project Engineer. _ — -b: Design-1 evelopmenf; -For--the-plans., specifications, non truotl 11 contract documentsLand any and at other engineering;l eonstrdction, and contractual documents produced by the Engineer, which are hereinafter colldbtively•referred to as "plans", the Agency will certify that (1) The plans 'shall 'be developed in accordance with sound engineering and design principles, and with generally accepted professional standards. (2) The plans shall be consistent with the intent of the project as defined in Exhibit A and Exhibit B of this Agreement. (3) The project Engineer shell perform a review of the certification requirements listed In Section B2 above and make a determination asto their applicability to this project (4) Development Of the plans shall comply with all applicable laws, ordinances, zoning and permitting requirements, public notice requirements, and other similar regulations. c. inspection and .Approvsil: TheAgency assures that (1) The Agenoy�?zvill provide and •maintain competent technical supervision at the construction sitetl7rouglibUit the project to assure that the work conforms to the plans, specifications, and 'schedules approved. by the'Departmentfor the project. (2) The Agency assures that .it will allow the Department to inspect the work and that it will provide any cost and progress reporting, as may be required by the Department. (3) The Agency assures that It will take the appropriate corrective action necessary, as required by the Department, 'for work whldh does not conform to Department standards. d. Pavement Preventive' Maintenance: The Agency assures that for a project involving replacement or reconstruotlon of .runway or taxiway pavement it has implemented an airport pavement maintenance management program and that It will .use such program for the useful life of any .pavement constructed, reconstructed, or repaired with state financial assistance at the airport. , • Page B of 9 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION EXHIBIT "C" AVIATION PROGRAM ASSURANCE 725-04D-15 AVIATION OGC- 03/09 24. Noise Mitigation Projects: The A,§6.ndy assures that It will: a. Government .Agreeme.n'tsrFor:allnoise compatibility projects that are carried out by another unit of local govemment or are on .p p y rb ert owned by a unit of local government other than the Agency, the Agency shall enter into an .agreement with that government body. (1) The local agreement, satisfactory to the Department, ts the oobate the unit of local government to the same. termsand.assurances that apply Agency. (2) The Agency assuresthat. it will take steps to enforce the local agreement if there Is substantial noncompliance with the terms of the agreement b. Private Agreements: 'For noise compatibility projects on privately owned. property, (1) The Agency shall enter into an agreement with the owner of that property to .exclude future actions against the airport (2) The Agency assures tot it will take steps to enforce the agreement if there is substantial non-compliance with the terms of the agreement. Page 9 of 9 Exhibit D Page 1 of 3 FINANCIAL PRO/ECT NO.: 42274219401 CONTRACT NO.: APY07 Exhibit D AUDIT FEDERAL and/or STATE resources awarded to the recipient pursuant to this agreement shoul provide ,be listed below. If the resources awarded to the recipient represent more than one Federal or State proga the same information for each program and the total:resources awarded, Compliance Requirements applicable to each Federal or State program should also belisted below, If the resources awarded to the recipient represent more than one program, list applicable compliance requirements' for eachprogram in the same manner as shown here: ▪ (e,g, Eligibility requirements for recipients of the resources) • (Etc...) NOTE: Instead of listing -the specific compliance requirements as shown above, the State awarding .agency may elect to -use language that requires the recipient to comply with the requirements of applicable provisions of specific laws, rules, regulations, etc. The State awarding agency, if practical, may•want to attach a copy of the specific law, rule, or regulation referred to. FEDERAL•RESOURCES Federal Aaenav Compliance Requirements 1. 2. 3. Catalog of FederalDomestic Assistance (Number & Title) STATE RESOURCES StateAgencv Catalog ofFecir Domestic Assistance (Number & Title) FDOT 55.004 Aviatioiibavelopinent Grants Amount Amount $1,096,000.00 Compliance Requirements 1, In developing audit procedures to test compliance with the requirements for a state project, the auditor compliance ould first look to Part Two, Matrix of Compliance Requirements, to identify which of the 10 types requirements described in.Part Three ofthe Compliance Supplement are applicable and then look to Parts Three and Four.for the .details ofthe requirements. ActivitiesAllowed Airport Planning .:.• Airport planning Grants are to study options for.airport development and operations. The Development funds airport masterplans, airport layoutplan (ALP), noise and environmental studies, economical impact, services development, and airport promotion. Examples of projects are: -Master plans and ALPs; -Master drainage plans; Environmental assessments (PA); -Development of regional impact (DRI); •L• Exhibit D Page 2 of 3 -Operations and emergency response plans; -Federal Aviation Regulations (FAR) Part 150 noise studies; -Environmental impact study (BIS) -Wildlife hazard studies; • -Feasibility and site selection studies; -Business plans; -Airport management studies and training:.• -Air services studies and related promotional -materials, (FDOTAviation Grant Program Handbook) Airport Improvement These grants are to provide capital facilities .and equipment for airports. Examples of_projects are Air -side capital improvement projects (runways, taxiways, aprons, T-liangers, fuel farms, maintenance hangers, lighting, control towers, instrument approach aids, automaticwoeat err�obsserrvat observation stations); and other -Land-side 'capital improvement project (terminal building, parking access projects);buildings, roofing buildings and other presentation projects (overlays, .crank .sealing, marking, painting approved projects); . Safety equipment (including AARF firefighting equipment and lighted Xs); -Safety _projects (trees clearing, land contouring on overrun areas, .and removing, lowering, moving and marking, lighting 11..ards); • . . . information technology equipment (used to inventory andplan airport facility needs); -Drainage improvement. (FDOT Aviation Grant Program Handbook) Land Acquisition This grant program protects Florida's ..citizens from airport noise end protects airport clear zones and runway approach areas from encroachment Administrative Cost, appraisals, legal fees, surveys, closing costs and preliminary engineering fees are eligible cdost.:In the event the negotiation for a fair market value is unsuccessful, the --sourt•vvill be petitioned far ".an_Ord.qg Taking' ?finder the eminent domain laws of Florida. Examples of projects are: ti -7 and acquisition (forland in an approved master plan or ALP); -Mitigation land (on or off airport); -Aviation easements; -Right of way; -Approach clear zones. (FDOT Aviation Grant program Handbook) • Airport Economic Development This grant program is to encourage airport -revenue. Examples ofprojects are: -Any airport improvement and land:purchase that will enhance economic impact; -Building for lease; -Industrialpart infrastructure and buildings; -General aviation terminals that will be 100 percent lensed out -Industrial park marking programs (FDOTAviation Grant Program Handbook) Aviation Land Acquisition Loan Program The Department provides interest free loans for 75 percent of the cost of airport land purchases for both commercial service and_ general aviation airports. ; Exhibit D Page3 of3 This is a general description of project types,'A detail list of project types approved for these grant programs can be found in the . Aviation Grant Programmanual which can be accessed through the internet .at www.dot.state.fl.us/Aviation/Public.btm ' Matching Commercial Service Airports When no federal funding is available, the Department provides up to 50 percent of the project cost. (FDOT Aviation Grant Program Handbook and Section 332.007 (6) Florida Statutes) General Aviation Airports When no federal funding is available; the Department provides up to 80 percent of the project cost. FDOT Aviation Grant Program Handbook and Section.332:007 (6) Florida Statutes) • Economic Development The Department .provides up to 50percent of airport economic development funds to build on -airport revenue - .producing capital improvements. This program is for local match only. FDOT Aviation Grant Program Handbook and Section 332.007 (6)Florida Statutes) AirportLoans • The Department provides a 75 percent loan programto fund the Aviation Land Acquisition LoanTrogram. FDOT Aviation Grant Program Handbook and SeA'' on 332,007 (6) Florida Statutes) Matc-hina Resources for Federal Programs • NOTE: Section .400(d) of OMB Circular A-133, as revised, and 5ection.2,15.97(5)(a), Florida Statutes, .require that-the-informataon.about lrederal.Prograrcs. ancl.5tateIrojO_ ,s. ixcluded in this exhibit be provided to the recipient k Financial Project No.: 42274219401 Contract No.: APY07 Date: • .. ; Exhibit E Deferred Reimbursement Financial Provisions Fis cal Year(s) 2011 The assurances herein shall form an integral part of this joint participation agreement (Agreement) between the State ofFlorida Department of Transportation (Department) and the Agency, This Agreement is a Deferred Reimbursement Agreement, A 'Deferred Reimbursement Agreement" means an .Agreement wherein the Agency chooses to begin a project in advance of the year in which the project or funding is programmed in the Department's adopted work program. Such Agreements may sometimes include funding in the state fiscal year in which the Agreement is executed. Costs eligible for reimbursement can only be incurred after the execution .date of the Agreement. If -the annual amount appropriated and available for reimbursement differs _from that shown in this Agreement for any fiscal year, the Department will provide written notification to the Agency by June 1 of :each year indicating the actual amount appropriated and available for reimbursement. No such notice Shall be providedif-theavailable funds .match those identified in this Agreement. The Agency -nay invoice the Department slier August 1 in the fiscal year(s) fne project funding is programmed in the adopted -work program -as of the date of execution of the Agreement and only for actual costs incurred, After receipt of a properly documented invoice, payment(s) will be made to the Agency as follows: ' ' ' 1. If this Agreement, as executed .and modified if applicable, includes individual Department fiscal years in vrhichihe amount of Department funrlfng is two (2) n illion .dollars or less in state funds, the reimbtrsement payment for each of those years will be made in a lump sum in. such year as defined in the Agreement, .and 2. For years in which the amount of Department funding in the work program is greater than -two (2) • million dollars, the reimbursement payment for such years will be -made in ten (10) equal quarterly payments beginning in -the year the projantis programmed, EXHIBIT "K" ENVIRONMENTAL CONDITION ACCEPTANCE CERTIFICATE Reference is made to that certain Development Agreement between The Miami Sports and Exhibition Authority ("Authority"), The City of Miami, Florida ("City"), and Linden Airport Services Corporation, d/b/a ("Tenant"), having an effective date of , 2012. Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings given to them in the Agreement. Pursuant to Section 3.1 of the Development Agreement, Tenant hereby gives notice to City as follows: (i) Tenant has inspected the environmental condition of the Subleased Premises and accepts the Phase I Audit of the Subleased Premises; and (ii) The environmental condition of the Subleased Premises is satisfactory to the Tenant. LINDEN AIRPORT SERVICES CORP., d/b/a By: Date: Name: Paul Dudley Title: President EXHIBIT "L" FINAL PLANS (TO BE INSERTERED ONCE PLANS ARE COMPLETED AND PERMITTED BY THE TENANT)