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ADDENDUM TO THE GRANT AGREEMENT
BY AND BETWEEN THE CRA AND THE CITY OF MIAMI
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This ADDENDUM to the GRANT AGREEMENT, dated May 12, 2009, is made as of
this day of , 2014 ("Addendum" or "Agreement") by and between the
SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY of
the City of Miami, a public agency and body corporate created pursuant to Section 163.356,
Florida Statutes ("CRA"), and the CITY OF MIAMI, a municipal corporation of the State of
Florida ("CITY").
RECITALS
A. WHEREAS, the CRA is responsible for carrying out community redevelopment
activities and projects within its Redevelopment Area in accordance with the 2009 Southeast
Overtown/Park West Community Redevelopment Plan, as amended and restated (the "Plan");
and
B. WHEREAS, the Plan, at Section IV.D., at page 31, provides that "the provision of
adequate community facilities and services is essential in order to complement redevelopment
activities proposed for Overtown ... ;" and
C. WHEREAS, in furtherance of the Plan's tenets, the CITY and the CRA sought to
undertake the renovation of Gibson Park, 401 NW 3`d Avenue, Miami, Florida ("Gibson Park"),
and the CITY's Department of Capital Improvements Program was responsible for overseeing
said renovations; and
D. WHEREAS, on February 23, 2009, the CRA's Board of Commissioners, by
Resolution No. CRA-R-09-0012, authorized the issuance of a grant, in an amount not to exceed
$1,000,000, for the Gibson Park Renovations ("2009 Grant"); and
E. WHEREAS, on May 12, 2009, the CRA and the CITY entered into a Grant
Agreement, attached hereto as Exhibit "A," which set forth the teiins and conditions of 2009
Grant ("Grant Agreement"); and
F. WHEREAS, on August 10, 2009, the CITY issued Request for Proposals No. 08-
09-064 for the provision of design build services for the design and construction of Gibson Park,
and Recreational Design and Construction, Inc. ("RDC") was the highest ranked proposer; and
G. WHEREAS, on March 11, 2009, the Miami City Commission, by Resolution No.
10-0103, authorized the execution of an agreement with RDC for the provision of design build
services for the design and construction of Gibson Park, at a total cost not to exceed
$10,774,133.70; and
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H. WHEREAS, on July 6, 2010, the CITY and RDC entered a design build services
agreement for the design and construction of Gibson Park, as described in the scope of work
attached hereto as Exhibit "B";
I. WHEREAS, on March 15, 2010, the CRA's Board of Commissioners authorized
the issuance of a grant, in an amount not to exceed $8,000,000, plus interest, to the CITY for
purposes of reimbursing the CITY for annual payments made for debt service on the Sunshine
State Loan No. 2, authorized by the Miami City Commission on [insert date] for, among other
things, the renovation of Gibson Park ("Sunshine State Loan Grant"); and
J. WHEREAS, on September 15, 2010, the CITY and RDC entered into
Amendment No. 1 to the design build services agreement to, among other things, memorialize
changes in the scope of work to be undertaken at Gibson Park, which reduced the total project
cost to $10,609,805.80; and
K. WHEREAS, on October 31, 2011, the CRA and the CITY entered into a First
Amendment to the Grant Agreement to reflect the issuance of the CRA's Sunshine State Loan
Grant; and
L. WHEREAS, on November 28, 2011, the CRA's Board of Commissioners, by
Resolution No. CRA-R-11-0058, authorized the issuance of additional grant funding, in an
amount not to exceed $2,800,000, to the CITY for the design and construction of an indoor
basketball gymnasium to at Gibson Park consisting of 12,000 square feet, with bleachers, wood
floors, 29' ft. ceilings, one full and two half basketball courts, restrooms, storage, and kitchen
facilities ("Gymnasium Improvements"), as described in Exhibit "C" attached hereto; and
M. WHEREAS, on April 12, 2012, the Miami City Commission, by Resolution No.
R-12-00145, authorized the execution of Amendment No. 2 to the design build services
agreement to reflect the addition of the Gym.nasiu.m Improvements to the scope of work to be
undertaken at Gibson Park; and
N. WHEREAS, on May 31, 2012, the CITY and RDC entered into Amendment No,
2 to reflect the addition of the Gymnasium Improvements, and to increase the total project to
$12,143,486.00; and
O, WHEREAS, on April 29, 2013, the CRA's Board of Commissioners, by
Resolution No. CRA-R-13-0030, authorized the issuance of additional grant funding, in an
amount not to exceed $600,000, to the CITY for the design and construction of classrooms and
recreational spaces to be included into the Gymnasium Improvements, as described in Exhibit
"D" attached hereto; and
P. WHEREAS, in response to the community's request for additional upgrades to
Gibson Park valued at $2,000,000 ("Additional upgrades"), the CRA's Board of Commissioners,
by Resolution No. CRA-R-13-0046, passed and adopted on July 25, 2013, authorized the
issuance of additional grant funding, in the amount of $1,000,000, provided that said additional
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grant funding is equally matched by other funding sources; and
Q. WHEREAS the Additional Upgrades consist of the those improvements set forth
in Exhibit "E" attached hereto; and
WHEREAS, on May 8, 2014, the Miami City Commission, by Resolution No.
[insert Reso I�To'] authorized the acceptance of a donation, in the amount of $1,000,000, from the
Miami Foundation, Inc. to underwrite costs associated with the Additional Upgrades; and
S. WHEREAS, the parties wish to enter into this Addendum to set forth the total
amount of grant funds issued by the CRA, and to set forth the teiius and conditions relating to
the use of said grant funds;
NOW, THEREFORE, in consideration of the mutual promises of the parties contained
herein and other good and valuable consideration, receipt and sufficient of which is hereby
acknowledged, the CRA and CITY agree as follows:
1. RECITALS. The Recitals to this Agreement are true and correct, and are
incorporated herein by referenced and made a part hereof.
2. GRANT FUNDS. Subject to the terms and conditions set forth herein and the
CITY's compliance with all of its obligations hereunder, the CRA hereby agrees to make
available to the CITY the total amount not to exceed $4,400,000, previously authorized by
Resolution Nos. CRA-R-09-0012, CRA-R-11-0058, and CRA-R-13-0030 ("Grant Funds").
Grant Funds shall be used to underwrite costs associated with the scope of work to undertaken at
Gibson Park, as reflected in Exhibits "B" (as modified by Amendment No. 1), "C" and "D."
The CRA further agrees to allocate, budget, and disbursed to the CITY the Sunshine State Loan
Grant in accordance with the Amortization Schedule attached hereto and incorporated herein as
Exhibit "F."
3. CONDITIONAL GRANT FUNDS. The CITY acknowledges that the CRA shall
only make that certain funding authorized by Resolution No. CRA-R-13-0030 ("Conditional
Grant Funds") upon the CITY's receipt or access to matching funds, in the amount of not less
than $1,000,000, from the Miami Foundation, Inc., or other funding sources for the Additional
Upgrades. The Conditional Grant Funds shall be used to underwrite costs associated with the
Additional Upgrades, in accordance with the scope of work set forth as Exhibit "E."
4. TERM. Section 9 of the Grant Agreement is hereby amended and restated to read
as follows:
The terns of this Agreement shall commence on the date first
written above and shall terminate upon the earlier of: i) Final
Completion of the Gymnasium Improvements, or, in the event
Conditional Grant Funds are made available, Final Completion of
both the Gymnasium Improvements, and the Additional
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Gymnasium Upgrades; or ii) earlier termination as provided for
herein; provided, however, that the following rights of the CRA
shall survive the expiration or early termination of this Agreement:
to audit or inspect; to require reversion of assets; to enforce
representations, warranties and certifications; to exercise
entitlement to remedies, limitation of liability, indemnification, and
recovery of fees and costs. "Final Completion," as used above,
shall mean the date upon which the CITY's Contractor has
substantially completed the aforementioned improvement(s).
5. DISBURSEMENT OF GRANT.
a. GENERALLY. Subject to the terms and conditions contained in this
Addendum, the CRA shall make available to the CITY funds as provided herein for the work set
forth in Exhibits "B," "C" and "D" (collectively referred to as the "Project"). In no event shall
payments to the CITY under this Addendum exceed the amounts set forth in Sections 2 and 3
above. Payments shall be made to the CITY or directly to vendors on behalf of CITY, only after
receipt of requests for disbursements by the CITY, and the CRA's approval of said requests.
b. PROCEDURE FOR REQUEST OF DISBURSEMENT. All requests for
the disbursement of Grant Funds, and, if applicable, Conditional Grant Funds, by the CITY shall
be certified by the Director of the CITY's Department of Capital Improvements, or designee.
All requests for disbursement of grant funds must be in writing and must be accompanied by
supporting documents reflecting the use of funding sought, and that said request is being made in
accordance with the Scope(s) of Work for the Project. For purposes of this Agreement,
"supporting documentation" may include invoices, receipts, photographs, and any other
materials evidencing the expense incurred, The CITY agrees that all invoices or receipts
reflecting the expenses incurred in connection to the Project shall be in the name of the CITY,
and not in the name of the CRA in light of the CITY's inability to bind the CRA to any legal
and/or monetary obligation whatsoever. The CRA retains the right to request additional
supporting documentation, or additional explanation for any and all expenses incurred by the
CITY. The CITY understands and acknowledges that the CRA shall not disburse grant funds for
any expense that is not within the Scopes of Work for the Project and that such expenses shall be
borne solely by the CITY.
c. CASH TRANSACTIONS PROHIBITED. The parties agree that no
payment will be made to the CITY as a reimbursement for any Project -specific invoice paid in
cash. The CITY acknowledges that a cash transaction is insufficient per se to comply with
record -keeping requirements under this Agreement.
d. NO ADVANCE PAYMENTS. The CRA shall not make advance
payments to the CITY or CITY's vendors for services not performed or for goods, materials or
equipment which have not been delivered to the CITY for use in connection with the Program.
6. RECORDS AND REPORTS/AUDITS AND EVALUATION.
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a. PUBLIC RECORDS; MAINTENANCE OF RECORDS. This Agreement
shall be subject to Florida's Public Records Laws, Chapter 119, Florida Statutes, as amended.
The parties understand the broad nature of these laws and agree to comply with Florida's Public
Records Laws, and laws relating to records retention. Moreover, in furtherance of the CRA's
audit rights in Section 8(c) below, the CITY acknowledges and accepts the authority of the CRA
to access the CITY's records, legal representatives' and contractors' records, and the obligation
of the CITY to retain and to make those records available upon request, and in accordance with
all applicable laws. The CITY shall keep records to show its compliance with this Addendum.
In addition, the CITY's contractors and subcontractors must make available, upon the CRA's
request, any books, documents, papers, and records which are directly pertinent to this specific
Agreement for the purpose of making audit, examination, excerpts, and transcriptions. The
CITY agrees to incorporate the CRA's right to access all records in the possession of the
Contractor and any subcontractors pertaining to the Project.
b. REPORTS. The CITY agrees to deliver or present to the CRA reports
relating to the use of the Grant Funds and, if applicable, the Conditional Grant Funds, as
requested by the CRA. Failure to provide said reports shall result in the Grant Funds, and, if
applicable, the Conditional Grant Funds, being withheld until the CITY has complied with this
provision. Thereafter, continued failure by the CITY in providing such reports shall be
considered a default under this Agreement.
c. AUDIT RIGHTS. The CRA shall have the right to conduct audits of the
CITY's records pertaining to the Grant Funds and, if applicable the Conditional Grant Funds,
and to visit the Project, in order to conduct its monitoring and evaluation activities. The CITY
agrees to cooperate with the CRA in the performance of these activities. Such audits shall take
place at a mutually agreeable date and time.
d. FAILURE TO COMPLY. The CITY'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.
7. REPRESENTATIONS; WARRANTIES; CERTIFICATIONS. CITY represents,
warrants, and certifies the following:
a. INVOICES. Invoices for all expenditures paid for by Grant Funds and, if
applicable, Conditional Grant Funds, shall be submitted to the CRA for review and approval in
accordance with the terms set forth herein.
b. EXPENDITURES. Funds disbursed under the this Agreement shall be
used solely for the Projects in accordance with the Scopes of Work set forth in Exhibit "A" and,
if applicable, Exhibit "B."
c. SEPARATE ACCOUNTS. The Grant will not be co -mingled with any
other funds, and separate accounts and accounting records will be maintained.
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d. POLITICAL ACTIVITIES. No expenditure of Grant funds shall be used
for political activities.
e. LIABILITY GENERALLY, The CITY shall be liable to the CRA for the
amount of the funding provided under this Agreement which has been expended in a manner
inconsistent with the terms and conditions set forth herein.
f. AUTHORITY. This Addendum has been duly authorized by all necessary
actions on the part of, and has been, or will be, duly executed and delivered by the CITY, and
neither the execution and delivery hereof, nor compliance with the terms 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 Third
Amendment, any other agreement or instrument to which the CITY is a party; or (iii)
contravenes or results in any breach of, or default under any other agreement to which the CITY
is a party, or results in the creation of any lien or encumbrances upon any property of the
Grantee.
8. DEFAULT. If the CITY fails to comply with any term or condition of this
Addendum, or fails to perform any of the CITY's obligations hereunder, and the CITY does not
cure such failure within thirty (30) days following receipt of written notice from the CRA that
such failure has occurred, then the CITY shall be in default. Upon the occurrence of such default
hereunder the CRA, in addition to all remedies available to it by law, may immediately, upon
written notice to the CITY, terminate this Addendum whereupon all payments, advances, or
other compensation paid by the CRA directly to the.CITY and utilized by the CITY in violation
of this Addendum shall be immediately returned to the CRA. The CITY understands and agrees
that termination under this section shall not release the CITY from any obligation accruing prior
to the effective date of teiinination.
9. NOTICE. All notices or other communications which shall or may be given
pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by
registered mail, addressed to the party at the address indicated herein or as the same may be
changed from time to time. Such notice shall be deemed given on the day on which personally
served, or, if by mail, on the fifth day after being posted, or the date of actual receipt or refusal
of delivery, whichever is earlier.
To CRA:
Clarence E. Woods, III, Executive Director
Southeast Overtown/Park West Community Redevelopment Agency
1490 N.W. 3rd Avenue, Suite 105
Miami, FL 33136
Email: cwoods@miamigov.com
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With copy to:
To CITY:
Brian Zeltsman, Director of Architecture and. Development
Southeast Overtown/Park West Community Redevelopment Agency
1490 N.W. 3rd Avenue, Suite 105
Miami, FL 33136
Email: bzeltsman@miamigov.com
Daniel J. Alfonso, City Manager
City of Miami, Florida
444 SW 2nd Avenue, 10th Floor
Miami, FL 33130
Email [insei ema l]
With copy to: Mark Spanioli, P.E., Director
Department of Capital Improvement Programs
City of Miami
444 SW 2nd Avenue, 8th Floor
Miami, FL 33130
Email: mspanioli@miamigov.com
And:
Jeovanny Rodriguez, P.E., Asst. Director
Department of Capital Improvement Programs
City of Miami
444 SW 2nd Avenue, 8th Floor
Miami, FL 33130
Email: jeovannyrodriguez(a�miamigov.com
With a copy to: City of Miami
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
Attn: Victoria Mendez
City Attorney
10. SPECIFIC PERFORMANCE. In the event of breach of this Addendum by the
CRA, the CITY may only seek specific performance of this Addendum and any recovery shall be
limited to the grant funding authorized for the Project. In no event shall the CRA be liable to
CITY for any additional compensation, other than that provided herein.
11. MARKETING.
a. PUBLICATION. In the event the CITY wishes to engage in any
marketing efforts, the CITY shall, if approved by the CRA in accordance with Section 11(b)
below, 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
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communications created by the CITY 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 internet advertisements or interviews.
b. APPROVAL. The CRA shall have the right to approve the form and
placement of all acknowledgements described in Section 11(a) above, which approval shall not
be unreasonably withheld.
c. LIMITED USE. The CITY further agrees that the CRA's name and logo
may not be otherwise used, copied, reproduced, altered in any manner, or sold to others for
purposes other than those specified in this Agreement. Nothing in this Agreement, or in the
CITY's use of the CRA's name and logo, confers or may be construed as conferring upon the
CITY any right, title, or interest whatsoever in the CRA's name and logo beyond the right
granted in this Agreement.
12. CONFLICTS. To the extent of any conflicts between the terms and provisions of
this Addendum and the terms and provisions of the Grant Agreement, First Amendment, or
Second Amendment, the terms and provisions of this Addendum shall control.
13. NON-DISCRIMINATION. The Grantee, for itself and on behalf of its
contractors and sub -contractors, agrees that it shall not discriminate on the basis of race, sex,
color, religion, national origin, age, disability, or any other protected class prescribed by law in
connection with its performance under this Agreement. Furthermore, the Grantee represents that
no otherwise qualified individual shall, solely, by reason of his/her race, sex, color, religion,
national origin, age, disability or any other member of a protected class 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.
14. 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.
15. 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 the CITY. If
this Agreement should be terminated by the CRA, the CRA will be relieved of all obligations
under this Agreement. In no way shall the CRA be subjected to any liability or exposure for the
termination of under this Section.
16. GENERAL PROVISIONS
' a. 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
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b. 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 the CITY relating to the Addendum or the Grant Agreement. Any promises,
negotiations, or representations not expressly set forth in this Agreement are of no force or
effect. This Addendum or the Grant 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.
c. CONTRACTUAL INTERPRETATION. Should the provisions of this
Addendum or the Grant 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 Addendum.
d. 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 Addendum unless otherwise expressly provided. All of the terms and conditions
set forth in this Addendum shall apply throughout the teiiii of this Addendum unless otherwise
expressly set forth herein.
e. CONFLICTING TERMS. In the event of conflict between the terms of
this Addendum and any terms or conditions contained in any attached documents, the terms of
this Agreement shall govern.
f. 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.
g. 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 terms and provisions of
this Agreement shall remain unmodified and in full force and effect,
h. 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.
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17. AMENDMENTS. No amendment to this Agreement shall be binding on either
party, unless in writing and signed by both parties.
18. DOCUMENT OWNERSHIP. Upon request by the CRA, all documents
developed by the Grantee shall be delivered to the CRA upon completion of this Agreement, and
may be used by the CRA, without restriction or limitation. 'The CITY 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 the CITY pursuant to this Agreement
shall at all times remain the property of the CRA, and shall not be used by the CITY for any
other purpose whatsoever, without the written consent of the CRA.
19. NON-DELEGABILITY. The obligations of the CITY under this Addendum 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.
20. CONSTRUCTION. This Addendum shall be construed and enforced in
accordance with Florida law.
21. MISCELLANEOUS.
a. In the event of any litigation between the parties under this Addendum, the
parties shall bear their own attorneys' fees and costs at trial and appellate levels.
b. Time shall be of the essence for each and every provision of this
Agreement.
c. All exhibits attached to this Agreement are incorporated in, and made a
part of this Agreement.
22. SUCCESSORS AND ASSIGNS. This Addendum shall be binding upon the
parties hereto, and their respective heirs, executors, legal representatives, successors, and
assigns.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, in consideration of the mutual entry into this Addendum, for
other good and valuable consideration, and intending to be legally bound, the CRA and the CITY
have executed this Addendum.
SOUTHEAST OVERTOWN/PARK WEST
COMMUNITY REDEVELOPMENT
AGENCY, of the City of Miami, a public
agency and body corporate created
pursuance to Section 163.356, Florida
Statutes
ATTEST:
By: By:
Todd B. Hannon
City Clerk
Clarence E. Woods, III
Executive Director
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
LEGAL SUFFICIENCY: REQUIREMENTS:
By: By:
Jessica N. Pacheco, Esq. Ann -Marie Sharpe.
CRA Counsel Interim Director, Risk Management
CITY OF MIAMI, a municipal corporation of
ATTEST: the State of Florida ("CITY")
By: By:
Todd B. Hannon
City Clerk
Daniel J. Alfonso
City Manager
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
By: By:
Victoria Mendez, Esq. Ann -Marie Sharp
City Attorney Interim Director, Risk Management
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"EXHIBIT 1"
Gibson Park Gymnasium, Project No, B-30305B
Scope of Work:
PHASE II Gymnasium - the work will consist of a new Gymnasium Building with +/- 12,000SF and shall
include Basketball Gymnasium Area, Men's and Women's Restroom, Cooking Kitchen including
equipment, storage and Concession Area, Equipment Storage Area, Mechanical, Electrical, Janitor
Rooms, Ticketing Office.