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HomeMy WebLinkAboutExhibit 1OMNI MUSEUM PARK GRANT AGREEMENT This OMNI MUSEUM PARK GRANT AGREEMENT (the "Agreement") is made as of this day of , 2012 by and between the OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY of the City of Miami, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"), and the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida (the "Grantee"). RECITALS A. The CRA is responsible for carrying out community redevelopment activities and projects within its Redevelopment Area in accordance with its approved Redevelopment Plan. B. Providing a system of public open spaces and maximizing access and view to Biscayne Bay are stated redevelopment objectives of the 2009 Omni Redevelopment Plan. C. The Museum Park Project at Bicentennial Park is listed as a high priority in the 2009 Onmi Redevelopment Plan, with support provided by the CRA to include construction costs. C. Grantee intends to avail itself of funding source opportunities for the design, construction, and improvements to bay -walks along Biscayne Bay within the Omni Redevelopment Area. D. The Board of Conunissioners of the Ouuti Redevelopment District Community Redevelopment Agency of the City of Miami, by Resolution No. CRA-R-12-0027, a copy of which is attached as Exhibit "A" hereto and made a part hereof, passed and adopted on April 26, 2012, authorized expenditures, in an amount not to exceed Five Million and No/100 Dollars ($5,000,000.00), to Grantee, to aid in the construction of drainage improvements, installation of pavers, landscaping, irrigation, lighting, concrete walkways, restrooms, and any other related expenses at Museum Park. G. The CRA and Grantee wish to enter into this Agreement to set forth the terns and conditions relating to the use of this grant. NOW, THEREFORE, in consideration of the mutual promises of the parties contained herein and other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the CRA and Grantee agree as follows: 1. RECITALS. The Recitals to this Agreement are true and correct, and are incorporated herein by reference and made a part hereof. 2. GRANT. Subject to the terms and conditions set forth herein and Grantee's compliance with all of its obligations hereunder, the CRA hereby agrees to make available to the Grantee the Grant to be used for the purpose and disbursed in the manner hereinafter provided. 3. USE OF GRANT. The Grant shall be used as follows: for the construction of drainage improvements, installation of pavers, landscaping, irrigation, lighting, concrete walkways, restrooms, and any other related expenses at Museum Park, located at 1075 Biscayne Boulevard, Miami, Florida ("Project"). 1 4. COMPLIANCE WITH POLICIES AND PROCEDURES. Grantee understands that the use of the Grant is subject to specific reporting, record keeping, administrative and contracting guidelines and other requirements affecting the activities funded by the Grant. Grantee covenants and agrees to comply, and represents and warrants to the CRA that the Grant shall be used in accordance, with all of the requirements, terms and conditions contained therein as the same may be amended during the term hereof. Without limiting the generality of the foregoing, Grantee represents and warrants that it will comply and the Grant will be used in accordance with all applicable federal, state and local codes, laws, rules and regulations. 5. RECORDS AND REPORTS/AUDITS AND EVALUATION. 5.1 RECORDS MAINTENANCE. Grantee understands and acknowledges that the CRA must meet certain record keeping and reporting requirements with regard to the Grant. In order to enable the CRA to comply with its record keeping and reporting requirements, Grantee agrees to maintain all records as required by the CRA. 5.2 DELIVERY UPON REQUEST. At the CRA's request, and no later than thirty (30) days thereafter, Grantee shall deliver to the CRA such written statements relating to the use of the Grant as the CRA may require. 5.3 AUDIT RIGHTS. The CRA shall have the right to conduct audits of Grantee's records pertaining to the Grant and to visit the Project, in order to conduct its monitoring and evaluation activities. Grantee agrees to cooperate with the CRA in the performance of these activities. 5.4 FAILURE TO COMPLY. Grantee's failure to comply with these requirements or the receipt or discovery (by monitoring or evaluation) by the CRA of any inconsistent, incomplete or inadequate information shall be grounds for the immediate termination of this Agreement by the CRA. 6. ASSET REVERSION. 6.1 UNUSED FUNDS. Upon the expiration of the term of this Agreement, Grantee shall transfer to the CRA any unused Grant funds on hand at the time of such expiration. 6.2 GOODS AND EQUIPMENT. Any goods or equipment, with a depreciable life, as determined by the Regulations of the Internal Revenue Service, procured with Grant funds shall be returned to the CRA's possession upon the termination of this Agreement. 7. REPRESENTATIONS: WARRANTIES: CERTIFICATIONS. Grantee represents, warrants, and certifies the following: 7.1 INVOICES. Invoices for all expenditures shall be submitted to the CRA for review and approval. 7.2 EXPENDITURES. Funds disbursed under the Grant shall be used solely for the purpose(s) described herein. All expenditures of the Grant will be made in accordance with the provisions of this Agreement. 2 7.3 SEPARATE ACCOUNTS. The Grant will not be co -mingled with any other funds and separate bank accounts and accounting records will be maintained. 7.4 POLITICAL ACTIVITIES. No expenditure of Grant funds shall be used for political activities. 7.5 RECORD -KEEPING. The expenditures of the Grant will be properly documented and such documentation will be maintained on file. 7.6 PROGRESS REPORTS. Periodic progress reports will be provided to the CRA as the same may be requested from time to time. 7.7 LIABILITY. Grantee will be liable to the CRA for the amount of the Grant expended in a manner inconsistent with this Agreement. 7.8 AUTHORITY. This Agreement has been duly authorized by all necessary actions on the part of, and has been, or will be, duly executed and delivered by the Grantee, and neither the execution and delivery hereof, nor compliance with the tenns and provisions hereof, (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein, (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions, or on the date of this Agreement, any other agreement or instrument to which the Grantee is a parry, or (iii) contravenes or results in any breach of, or default under any other agreement to which the Grantee is a party, or results in the creation of any lien or encumbrances upon any property of the Grantee. 8. DISBURSEMENT OF GRANT. Subject to the terms and conditions contained in this Agreement, the CRA shall make available to Grantee up to Five Million and No/100 Dollars ($5,000,000.00). Payments will be made only after receipt and approval of Project specific invoices and verification of acceptable work product. In no event shall payments to Grantee under this Grant agreement exceed Five Million and No/100 Dollars ($5,000,000.00). 9. TERM. The term of this Agreement shall commence on the date first above written and shall terminate upon the earlier of: (a) full disbursement of Five Million and No/100 Dollars ($5,000,000.00); (b)upon completion of the Project; (c) June 30, 2014; or (d) earlier termination as provided for herein; provided, however, that all rights of the CRA to audit or inspect, to require reversion of assets, to enforce representations, warranties and certifications, to default remedies, to limitation of liability and indemnification, and to the recovery of fees and costs shall survive the expiration or earlier ternination of this Agreement. 10. REMEDIES FOR NON-COMPLIANCE. If Grantee fails to perform any of its obligations or covenants hereunder, or materially breaches any of the terms contained herein, then the CRA shall have the right to take one or more of the following actions: (a) Withhold cash payments, pending correction of the deficiency by Grantee; (b) Recover payments made to Grantee; (c) Disallow (that is, deny the use of the Grant for) all or part of the cost for the activity or action not in compliance; 3 (d) Withhold further awards for the Project; or (e) Take such other remedies that may be legally permitted. 11. NON-DISCRIMINATION. Grantee, for itself and on behalf of its contractors and sub- contractors, agrees that it shall not discriminate as to race, sex, color, religion, national origin, age, marital status or handicap in connection with its performance under this Agreement. Furthermore, Grantee represents that no otherwise qualified individual shall, solely, by reason of his/her race, sex, color, religion, national origin, age, marital status or handicap be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving financial assistance pursuant to this Agreement. 12. CONFLICT OF INTEREST. Grantee has received copies of, and is familiar with, the following provisions regarding conflict of interest in the performance of this Agreement by Grantee. Grantee covenants, represents and warrants that it will comply with all such conflict of interest provisions: (a) Code of the City of Miami, Florida, Chapter 2, Article V. (b) Miami -Dade County Code, Section 2-11.1. 13. CONTINGENCY. Funding for this Agreement is contingent on the availability of funds and continued authorization for Project activities, and is subject to amendment or termination due to lack of funds or authorization, reduction of funds, or change in regulations. 14. MARKETING. 14.1 SIGNAGE. Grantee shall prominently display signage acknowledging the CRA's contribution to the Project at Grantee's primary place of business during the temi of this Agreement. Said signage shall remain on display at Grantee's primary place of business for a period of two (2) years following this Agreement's termination. 14.2 PUBLICATION. Grantee shall produce, publish, advertise, disclose, or exhibit the CRA's name and/or logo, in acknowledgement of the CRA's contribution to the Project, in all forms of media and communications created by Grantee for the purpose of publication, promotion, illustration, advertising, trade or any other lawful purpose, including but not limited to stationary, newspapers, periodicals, billboards, posters, email, direct mail, flyers, telephone, public events, and television, radio, or intemet advertisements or interviews. 14.3 APPROVAL. The CRA shall have the right to approve the form and placement of all acknowledgements, which approval shall not be unreasonably withheld. 14.4 LIMITED USE. Grantee further agrees that the CRA's name and logo may not be otherwise used, copied, reproduced, altered in any mariner, or sold to others for purposes other than those specified in this Agreement. Nothing in this Agreement, or in Grantee's use of the CRA's name and logo, confers or may be construed as conferring upon Grantee any right, title, or interest whatsoever in the CRA's name and logo beyond the right granted in this Agreement. 15. DEFAULT. If Grantee fails to comply with any teen or condition of this Agreement, or fails to perform any of its obligations hereunder, then Grantee shall be in default. Upon the occurrence of a default 4 hereunder the CRA, in addition to all remedies available to it by law, may immediately, upon written notice to Grantee, temunate this Agreement whereupon all payments, advances, or other compensation paid by the CRA to Grantee while Grantee was in default shall be immediately returned to the CRA. Grantee understands and agrees that termination of this Agreement under this section shall not release Grantee from any obligation accruing prior to the effective date of termination. 16. LIABILITY OF THE CRA. No officer, employee, agent, or principal, whether disclosed or undisclosed, of the CRA shall have any personal liability with respect to any of the provisions of this Agreement. Any liability of the CRA under this Agreement shall be subject to the limitations imposed by Section 768.28, Florida Statutes. 17. SPECIFIC PERFORMANCE. In the event of breach of this Agreement by the CRA, the Grantee may only seek specific performance of this Agreement and any recovery shall be limited to the grant funding authorized for the Project. In no event shall the CRA be liable to Grantee for any additional compensation, other than that provided herein, or for any consequential or incidental damages or costs. 18. INDEMNIFICATION OF THE CRA. Grantee, subject to the limitations imposed by Section 768.28, Florida Statutes, shall indemnify, defend, save and hold harmless the CRA and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attomey's fees) or liabilities (collectively referred to as "liabilities") arising out of, resulting from or in connection with (i) the performance or non-performance of the services , supplies, materials and equipment contemplated by this Agreement which is directly or indirectly caused, in whole or in part, by any act, omission, default, professional errors or omissions, or negligence (whether active or passive) of Grantee or its employees, agents or subcontractors (collectively referred to as "Grantee"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default, breach, or negligence (whether active or passive) of the CRA, , unless such injuries or damages are ultimately proven to he the result of grossly negligent or willful acts or omissions on the part of the CRA; or (ii) the failures of the Grantee to comply with any of the paragraphs provisions herein; or (iii) the failure of the Grantee, , to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal, state, county, or city in connection with the granting or performance of this Agreement, or any Amendment to this Agreement, or any actions or challenges that may arise out of this Amendment of the Agreement by, as due to alleged failure to comply with any applicable procurement requirements or similar limitations imposed on such agreements by law, Grantee expressly agrees to indemnify and hold harmless the CRA, from and against all liabilities which may he asserted by an employee or former employee of Grantee, or any of its subcontractors, as provided above, for which the Grantee's liability to such employee or former employee would otherwise be limited to payments under state Worker's Compensation or similar laws. This section shall be interpreted in a manner to comply with any applicable Florida Statutes, including, without limitation, 725.06 and 725.08, F.S., if applicable. This Indemnification shall survive the cancellation or expiration of the Agreement. 19. DISPUTES. In the event of a dispute between the Executive Director of the CRA and Grantee as to the terms and conditions of this Agreement, the Executive Director of the CRA and Grantee shall proceed in good faith to resolve the dispute. If the parties are not able to resolve the dispute within thirty (30) days of written notice to the other, the dispute shall be submitted to the CRA's Board of Commissioners for resolution within ninety (90) days of the expiration of such thirty (30) day period or such longer period as may be agreed to by the parties to this Agreement. The Board's decision shall be deemed final and binding on the parties. 5 20. INTERPRETATION. 20.1 CAPTIONS. The captions in this Agreement are for convenience only and are not a part of this Agreement and do not in any way define, limit, describe or amplify the terms and provisions of this Agreement or the scope or intent thereof. 20.2 ENTIRE AGREEMENT. This instrument constitutes the sole and only agreement of the parties hereto relating to the Grant, and correctly set forth the rights, duties, and obligations of the parties. There are no collateral or oral agreements or understandings between the CRA and Grantee relating to the Agreement. Any promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. This Agreement shall not be modified in any manner except by an instrument in writing executed by the parties. The masculine (or neuter) pronoun and the singular number shall include the masculine, feminine and neuter genders and the singular and plural number. The word "including" followed by any specific item(s) is deemed to refer to examples rather than to be words of limitation. 20.3 CONSTRUCTION. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 20.4 COVENANTS. Each covenant, agreement, obligation, term, condition or other provision herein contained shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making the same, not dependent on any other provision of this Agreement unless otherwise expressly provided. All of the terms and conditions set forth in this Agreement shall apply throughout the term of this Agreement unless otherwise expressly set forth herein. 20.5 CONFLICTING TERMS. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall govern. 20.6 WAIVER. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. 20.7 SEVERABILITY. Should any provision contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida, then such provision shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, that same shall be deemed severable, and in either event, the remaining terns and provisions of this Agreement shall remain unmodified and in full force and effect. 20.8 THIRD -PARTY BENEFICIARIES. No provision of this Agreement shall, in any way, inure to the benefit of any third party so as to make such third party a beneficiary of this Agreement, or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any party not a party hereto. 6 21. AMENDMENTS. No amendment to this Agreement shall be binding on either party, unless in writing and signed by both parties. 22. DOCUMENT OWNERSHIP. Upon request by the CRA, all documents developed by Grantee shall be delivered to the CRA upon completion of this Agreement, and may be used by the CRA, without restriction or limitation. Grantee agrees that all documents maintained and generated pursuant to this Agreement shall be subject to all provisions of the Public Records Law, Chapter 119, Florida Statutes. It is further understood by and between the parties that any document which is given by the CRA to Grantee pursuant to this Agreement shall at all times remain the property of the CRA, and shall not be used by Grantee for any other purpose whatsoever, without the written consent of the CRA. 23. AWARD OF AGREEMENT. Grantee warrants that it has not employed or retained any person employed by the CRA to solicit or secure this Agreement, and that it has not offered to pay, paid, or agreed to pay any person employed by the CRA any fee, commission percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of the Grant. 24. NON-DELEGABILITY. The obligations of Grantee under this Agreement shall not be delegated or assigned to any other party without the CRA's prior written consent which may be withheld by the CRA, in its sole discretion. 25. CONSTRUCTION. This Agreement shall be construed and enforced in accordance with Florida law. 26. TERMINATION. The CRA reserves the right to terminate this Agreement, at any time for any reason upon giving five (5) days written notice of termination to Grantee. If this Agreement should be terminated by the CRA, the CRA will be relieved of all obligations under this Agreement. 27. NOTICE. All notices or other conununications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail, addressed to the party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served, or, if by mail, on the fifth day after being posted, or the date of actual receipt or refusal of delivery, whichever is earlier. To CRA: Omni Redevelopment District Community Redevelopment Agency 49 N.W. 5th Street, Suite 100 Miami, FL 33128 Attn: Pieter A. Bockweg Executive Director To Grantee: City of Miami 444 S.W. 2nd Avenue, loth Floor Miami, FL 33130 Attn: Johnny Martinez City Manager Department of Capital Improvements Program 444 S.W. 2nd Avenue, 8th Floor Miami, FL 33130 Attn: Alberto Sosa Director 28. INDEPENDENT CONTRACTOR. Grantee, its contractors, subcontractors, employees and agents shall be deemed to be independent contractors, and not agents or employees of the CRA, and shall not 7 attain any rights or benefits under the civil service or pension programs of the CRA, or any rights generally afforded its employees; further, they shall not be deemed entitled to Florida Workers' Compensation benefits as employees of the CRA. 29. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 30. MISCELLANEOUS. 30.1 In the event of any litigation between the parties under this Agreement, the parties shall bear their own attorneys' fees and costs at trial and appellate levels. Agreement. 30.2 Time shall be of the essence for each and every provision of this Agreement. 30.3 All exhibits attached to this Agreement are incorporated in, and made a part of this [SIGNATURES APPEAR ON THE FOLLOWING PAGE] 8 IN WITNESS WHEREOF, in consideration of the mutual entry into this Agreement, for other good and valuable consideration, and intending to be legally bound, the CRA and Grantee have executed this Agreement. OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, of the City of Miami, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes, ("CRA") ATTEST: By: By: Priscilla A. Thompson Pieter A. Bockweg Clerk of the Board Executive Director APPROVED AS TO FORM AND CORRECTNESS: By: Julie O. Bru General Counsel ATTEST: CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida ("GRANTEE") By: By: Priscilla A. Thompson Johnny Martinez City Clerk City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis Julie O. Bru Director, Risk Management City Attorney 9 EXHIBIT "A" Resolution [this document begins o❑ the following page] 10 City of Miami Legislation CRA Resolution: CRA-R-12-0027 City Hall 3500 Pan American Drive Miami, FL 33133 www,miamigov.com File Number: 12-00190 Final Action Date: 4/26/2012 A RESOLUTION OF THE BOARD OF COMMISSIONERS OF THE OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, WITH ATTACHMENT, DE -ALLOCATING $5,000,000, ASSOCIATED WITH PREVIOUSLY AUTHORIZED PROJECTS, AS MORE SPECIFICALLY SET FORTH IN ATTACHMENT "A'; ALLOCATING SAID FUNDS FOR THE CONSTRUCTION OF MUSEUM PARK PROJECT# CIP B-30538. WHEREAS, the Omni Redevelopment District Community Redevelopment Agency ("CRA") is responsible for carrying out community redevelopment activities and projects within its Redevelopment Area in accordance with its approved Redevelopment Plan; and WHEREAS, the Board of Commissioners, by several resolutions, authorized funding for various projects; and WHEREAS, there now is $5,000,000 in funds from these previously authorized projects, as more specifically set forth in Attachment "A"; and WHEREAS, the Interlace! Agreement Between the City of Miami, Miami -Dade County, Southeast Overtown/Park West CRA and Omni CRA to Provide Funding for Major Projects for the Benefit of All Parties, date December 31, 2007, requires the Omni CRA to identify funding sources and reallocate the use of existing revenues for the construction of Museum Park; and WHEREAS, the Board of Commissioners wishes to authorize the de -allocation of $5,000,000, as more specifically set forth in Attachment "A", and allocate said funds for the construction of Museum Park Project # CIP B-30538; and NOW, THEREFORE. BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated herein as if fully set forth in this Section. Section 2. The amount of $5,000,000, associated with the previously authorized projects, as more specifically set forth in Attachment "A", are de -allocated, and said funds are hereby allocated for the construction of Museum Park Project # CIP B-30538. Section 3. This resolution shall become effective immediately upon its adoption. City of Miami Page 1 of 2 File Id: 12-00190 (Version: I) Printed On: 5/24/2072 File Number: 12-00190 Enactment Number: CRA-R-12-0027 City of Miami Page 2 of 2 File Id: 12-00190 (Version: 1) Printed On; 5/24/2012