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HomeMy WebLinkAboutExhibitDevelopment Management Agreement By and Between The City Of Miami And BCC Road Improvement LLC For The Intersection Improvement at 6th Street and South Miami Avenue Department of Capital Improvements 444 SW 2nd Avenue, 8th Floor Miami, Florida 33130 {28565468;2) iCsrt I Y--zr THIS DEVELOPMENT MANAGEMENT AGREEMENT (hereinafter "the Agreement"), made and entered into this day , 2014 by and between the City of Miami, Florida, a Florida municipal corporation (hereinafter, the "City"), and BCC Road Improvement LLC, a Florida limited liability corporation, (hereinafter, "Development Manager" or "Swire"). WITNESSETH: WHEREAS, pursuant to the applicable provisions of Chapter 163, Florida Statutes, Section 3,9 of the Miami 21 Code, and per Ordinance No. 13278,.adopted on July 28, 2011, the City Commission approved a Development Agreement in conjunction with the Brickell City Centre Special Area Plan ("SAP") which Development Agreement, as amended, contemplates that Swire or its affiliate(s) will undertake certain improvements in the public infrastructure and the public right-of-ways, including the design and construction of a traffic improvement at SW/SE 6th Street and South Miami Avenue, in conjunction with the City and Miami -Dade County; and WHEREAS, pursuant to Resolution No, R-14-0208, adopted on May 22, 2014, the City Commission approved the purchase and sale agreement with the Board of Trustees of the Internal Improvement Fund of the State of Florida ("TIIF") for the acquisition of that certain property located at 602 South Miami Avenue (Folio No. 01-4138-070-0020) and 614 South Miami Avenue (Folio No. 01-4138-070-0020), as legally described in Exhibit "A" (the "Property"), the costs of which were funded directly by Swire and from easement fees paid by Swire to the City in connection with its easement below and above SE 6th Street; and WHEREAS, pursuant to Resolution No. R-14-0209, adopted on May 22, 2014, the City Commission approved the assignment of the Property to Swire for purposes of the design and construction of public improvements; and WHEREAS, the City and Swire desire to enter into an Agreement for the design, construction, and maintenance of an intersection improvement at the intersection of South Miami Avenue and SW/SE 6th Street in the City of Miami, Florida, to allow westbound traffic on SE 6th Street to continue travelling west through the intersection, specifically located on public right-of-way and on the Property (the "Project"); and • WHEREAS, in 2013 the City contracted with an engineering firm known as HNTB in order to examine ways to improve traffic flow in the vicinity of the Project, and the City now wishes for Swire to implement the Project as a means to accomplish the goals and purposes of that study; and WHEREAS, City and Swire recognize that the ultimate design and construction of the Project will be subject to review and approval by Miami -Dade County ("County") and that the timing for completion of the Project may be impacted by the County's approval process and requirements; and {28565468;2} WHEREAS, Swire represents that it possesses the requisite expertise and desires to enter into an Agreement to act as the development manager to design, construct, and maintain the Project in a timely manner, as set forth herein; and WHEREAS, this Agreement implements a project of a government agency or instrumentality, and effectuates a public purpose furthering the general health, safety and welfare of the City as it enhances and the current roadway system and traffic circulation in the Brickell area of the City of Miami, which is known as the City's Financial District and which is becoming an increasingly important center of activity for the City's workforce, residents, guests and visitors; and WHEREAS, the City agrees to contribute a sum not to exceed One Million Six Hundred and Two Thousand Two Hundred Fourteen and 00/100 Dollars ($1,602,214.00), which represents money Swire either has paid or will pay to the City in the form of DRI Transportation Fees associated with Brickell City Centre, to be expended towards the costs of construction of the Project, hereinafter the "City Contribution"; and WHEREAS, Swire has agreed to fund the remaining balance of the costs associated with the design and construction of the Project; and WHEREAS, Swire will be responsible for maintenance associated with the Project, once constructed; and WHEREAS, the City Commission has authorized the City Manager to execute and enter into this Agreement by its adoption of Resolution, NOW THEREFORE, in consideration of the mutual covenants set forth herein the City and Development Manager, agree as follows: 1. Incorporation by Reference The foregoing recitals, the Exhibits to this Agreement, and the prior .agreements, ordinances and resolutions referenced in this Agreement are all deemed as being incorporated by reference herein as if set forth in full in this Section of the Agreement. 2. Scope of Work Swire shall provide all management, supervision, manpower, equipment, tools, and all other necessary goods and services for the design and construction of the Project, so that the Project is built in accordance with City and County regulations. 3. Time for Completion; Extension of Time; Reverter (a) Swire shall cause all design drawings and permit applications for the construction of the Project and all supporting materials to be prepared and submitted for approval by the City on or before December 31, 2015. {28565468;2)2 (b) Upon written notice by Swire to the City, the City Manager, on behalf of City, in its sole discretion and without amendment to this Agreement, may authorize one or more extensions of time for Development -Manager's satisfaction of Section 3(a) for up to an additional twelve (12) months. (c) Substantial completion of the Project shall occur on or before August 1, 2017. Upon written notice by Swire to the City, the City Manager, on behalf of City, and without amendment to this Agreement, may authorize two extensions of 2-years each, upon showing of progress towards project completion by Swire. In the event the Project is not complete on or before August 1, 2017 or the extensions thereof, if authorized, the Property shall revert to the City, 4. Permits and Licenses (a) Both the City and Swire understand and acknowledge that South Miami Avenue is under the maintenance jurisdiction of Miami -Dade County. The City shall have the right to review and inspect all design drawings and permit applications and supporting documents for the work associated with the Project ("Work") prior to final plans being submitted to Miami - Dade County. However, the City understands and acknowledges that Miami -Dade County must ultimately review and approve of the'final design plans for the Project. (b) Except as otherwise provided within the Agreement, all permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the work associated with the Project undertaken by Swire pursuant to this Agreement shall be secured and paid for by Swire. City shall assist in expediting any permits and licenses required to be obtained from the City of Miami. 5. Contribution of Public Funds Upon issuance of permits required to commence construction of the Project, and within 30 days of receipt of notice that such payment is due, City agrees to provide Development Manager with 50% of the City Contribution. Upon completion of the Project, as evidenced by the issuance by the City of the Certificate of Substantial Completion, as attached in Exhibit "D", and within 30 days of receipt of notice that such payment is due, City agrees to issue the Final Certificate of Payment, as attached in Exhibit "E", and to provide Development Manager with the remaining 50% of the City Contribution. 6. Prior Approval; Defective Work (a) The* City shall have the authority to reject or disapprove any construction which it finds to be defective. If required by the City, Swire, through its contractors and/or subcontractors, shall promptly either correct all defective construction or remove such defective construction and replace it. Swire shall bear all direct and indirect costs of such removal or corrections including cost of testing laboratories and personnel. (b) Should Swire fail or refuse to remove or correct any defective construction or to make any necessary repairs within a reasonable time after notice in writing provided by the City, the {28565468;2)3 City shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be reasonably necessary at Swire's expense. (c) Upon substantial completion of the Project, Swire shall notify City in writing of substantial completion, and within fifteen (15) days, City shall conduct an inspection and issue a Substantial Completion Inspection report, in the form attached as Exhibit "B", to be accompanied either by (i) the Certificate of Substantial Completion, or (ii) a Punch List identifying the corrective work, in the form attached as. Exhibit "C". (d) Upon receipt of a Punch List, Swire shall take corrective actions and when complete, notify City of the substantial completion of the Project for review under subsection (c) until the City issues the Certificate of Substantial Completion. 7. Force Majeure Should any failure to perform on the part of Swire be due to a condition of force majeure as that term. is interpreted under Florida law, then the City shall allow an extension of time reasonably commensurate with the cause of such failure to perform or cure. 8. Termination (a) If Swire fails to comply with any material team. or condition of this Agreement, or fails to perform any of its obligations hereunder, then Swire shall be in default. Upon the occurrence of a default, in addition to all remedies ,available to it by law, the City may immediately, upon written notice to Development Manager, terminate this Agreement and be afforded a reimbursement of any portion of the City Contribution made to Development Manager. (b) The City shall provide Written Notice to Cure to Development Manager as to a finding of default, and Development Manager shall take all necessary action to Cure said default within such time as stipulated in the Written Notice. Such Written Notice shall provide a minimum of 30 days to Cure any alleged default. Such time to Cure shall be at the sole discretion of the City, but be no less than 30 days, The City may extend the Cure Period at its sole discretion or terminate the Agreement upon failure of the Development Manager to cure such default in the specified timeframe. (c) If City fails to provide Swire with the City Contribution as specified in Section 5, the City shall be in default and Swire shall be relieved of all responsibility under this Agreement. 9. Successors and Assigns The perforrnance of this Agreement shall not be transferred pledged, sold, delegated or assigned, in whole or in part, by Swire without the written consent of the City. Notwithstanding the foregoing, Swire may assign this Agreement to an entity that is an affiliate owned or controlled by or under common control of Swire without written consent of the City. (28565468;2)4 10. Insurance In connection herewith, Swire shall obtain and maintain or cause to be obtained and maintained in full force and effect throughout the period of this Agreement, with respect to its operations on the Property the types and amounts of insurance coverage set forth in Exhibit "F" attached hereto 11. Indemnification of City, Swire shall indemnify, defend and save City harmless from and against any and all claims, actions, damages, liability and expense in connection with loss of life, personal injury and/or damage to or destruction of property arising from or out of any occurrence in, upon or at the Property, or the occupancy or use by Swire of the Property, or any part thereof, or occasioned wholly or in part by any act of omission of Swire, its agents, contractors, employees, servants, customers, invitees, Lessees, Sub -lessees or concessionaires. In case City shall be made a party to any litigation commenced by or against Swire covered by this indemnity provision, then Swire shall protect and hold City harmless and pay all costs and attorney's fees incurred by City in connection with such litigation, and any appeals thereof. Swire shall also pay all costs, expenses and reasonable attorneys' fees that may be incurred or paid by 'City in enforcing the covenants and agreements in this Agreement. 12. Third Party Beneficiaries Neither Development Manager nor the City intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of therm based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any 'third person or entity under this Agreement. 13. Amendments No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City Manager and Development Manager. 14. Severability In the event that any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights of either party, such party may elect, at its option, to terminate this Agreement in its entirety. An election to terminate this Agreement based upon this provision shall be made within. seven (7) days after the finding by the court becomes final, {28565468;2}5 15. Notices All notices to be given under this Agreement shall be in writing and sent to the Parties at the addresses set forth below, by hand delivery or by a nationally recognized overnight courier service. Any such notice shall be deemed received upon the earlier of receipt or refusal by the addressee. Notices to Swire shall be sent to: BCC Road Improvement, LLC c/o Swire Properties Chris Gandolfo, Vice President 601 Brickell Key Drive Miami, Florida 33131 With a copy to: T. Spencer Crowley, Esq. Alterman LLP 1 SE 3rd Avenue 25th Floor Miami, Florida 33131 Notices to City shall be sent to: City of Miami Capital Improvements Department Attn: Mark Spanioli, Director' 444 SW 2nd Avenue 8th Floor Miami, Florida 33130 16. Entire Agreement This Agreement, as it may be amended from time to time, represents the entire and integrated agreement between the City and the Development Manager and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may not be amended, changed, modified, or otherwise altered in any respect, at any tithe after the execution hereof, except by a written document executed with the same formality and equal dignity herewith Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach. [ SIGNATURE PAGE(S) TO FOLLOW ] {28565468;2}6 IN WETNESS WHEREOF, the parties have set their hands and seals on the day and year first shove written tti("4{tr41 CityofMiani, amunicipal ATTEST: By: ToddB. Hannon, CityCierk Daniel J, Alfonso, CityManager . "Development Manager" A1`1'EST: , a By: Naive: Name: Title: Title: APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Ann -Marie Sharpe, Interim Director Risk Management {28565468;2}7 EXHIBIT A. Legal Description Tracts A and B of 602 Complex According to the Plat thereof, as recorded in Plat Book 139, Page 41, of the {28291848;2} CITY OF M[ANII Date of Inspection: Project information Project No.: Project Location: Representation City of Miami ser Agency: Contractor: Exhibit "B" DEPARTMENT OF CAPITAL IMPROVEMENTS 444 S.W. 21VA AVENUE, S'" FLOOR MIAMI, FLORIDA 33130 SUBSTANTIAL COMPLETION INSPECTION Re -Inspection No.: Project Name: Contractor's Name: Inspection Based on the request of the Contractor a substantial completion inspection was conducted, which resulted in the following: No punch list created. By signing below the City acknowledges that the work has been performed in accordance with the contract and specification requirements. This form shall serve as the Notice of Final Completion. Project Close Out and final payment is subject to the submittal of all required documentation. Ci The punch list items as stated on the punch list form are of a nature that will allow beneficial occupancy on the premises and the punch list is issued as a final punch list, subject to re -inspection by the City. By signing below the City acknowledges that the work has been performed in accordance with the contract and specification requirements. This form shall serve as a partial acceptance and notification of substantial completion. Final Acceptance shall be issued subsequent to completion and re -inspection of the punch list items. Project Close Out and final payment is subject to the punch list re -inspection and the submittal of all required documentation. © The punch list items listed are of a nature that precludes beneficial occupancy of the premises. Substantial completion is denied at this time. Items on the punch list must be completed and the Contractor must request another Substantial Completion Inspection. {28565468;2)9 The failure or refusal of the Contractor to sign the Project Substantial Completion Inspection Form or Punch List shall relieve the Contractor from complying with the findings of the Project Substantial Completion Inspection and completing the Project to the satisfaction of the City. All punch Fist items must be completed on or before the mutually agreed upon date of Contractor City of Miami Accepted By: Approved By: Name Naive Signature Signature (28565468;2)10 CITY OF MIAMMII Exhibit"C►► DEPARTMENT OF CAPITAL IMPROVEMENTS 444 NW 2ND AVENUE MIAMI, FLORIDA 33130 PUNCH LIST Date of Substantial Completion Inspection: Date of Punch List Inspection: Project No: Project Name: Project Location: Contractor's Name: City of Miami Representative: Development Manager Representative: The following is a list of items, within the scope of work, that require correction prior'to; ❑ a new substantial completion inspection or, ❑ final completion. A detailed description for each item is provided below. Upon completion the City's Department of Capital Improvements shall inspect the work performed and initial that each item has been completed and accepted. (Use additional pages as necessary).. Description of City's Date of Item Acceptance Acceptance Exhibit "D" CERTIFICATE OF SUBSTANTIAL COMPLETION: PROJECT: (naive, address) AGREEMENT NUMBER: DEVELOPMENT MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: TO (City): DATE OF ISSUANCE: PROJECT OR DESIGNATED PORTION SHALL INCLUDE: The Work performed under this Agreement has been reviewed and found to be substantially complete and all documents required to be submitted by Development Manager have been received and accepted. The Date of Substantial Completion of the Project or portion thereof designated above is hereby established as DEFINITION OF DATE OF SUBSTANTIAL COMPLETION The Date of Substantial Completion of the Project or portion thereof designated by City is the date certified by Consultant and/or Director when all conditions and requirements of permits and regulatory agencies have been satisfied and the work is sufficiently complete in accordance with this Agreement and the permits issued for this Project, so the Project is available for beneficial occupancy by City, A Certificate of Occupancy/Completion must be issued for Substantial Completion to be achieved. A list of items to be completed or corrected, prepared by Consultant and approved by City is attached hereto. The failure to include any items on such list does not alter the responsibility of Development Manager to complete all work in accordance with this Agreement, The date of commencement of warranties for items on the attached list will be the date of Substantial Completion unless otherwise agreed in writing. City , By Date In accordance with the Agreement, Development Manager will complete or correct the work on the list of items attached hereto within from the above Date of Substantial Completion, City By Date City, through the Director, accepts the Work or .portion thereof designated by City as substantially complete and will assume full possession thereof at (time) on (date), City By Date PROJECT: (name, address) TO (City): Exhibit "Ett FINAL CERTIFICATE OF PAYMENT: BID/CONTRACT NUMBER: DEVELOPMENT MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: DATE OF ISSUANCE: All conditions or requirements of any permits or regulatory agencies have been satisfied. The documents required by the Agreement, and the final bill of materials, if required, have been received and accepted. The Work required by this Agreement has been reviewed and the undersigned certifies that the Work, including minor corrective work, has been completed and is accepted. City, through the Director, accepts the work as fully complete and will assume full possession thereof at (Time) (Date) City of Miami, Florida By Director Date {28565468;2} Exhibit " F" INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE DEVELOPMENT AND MANAGEMENT AGREEMENT FOR SOUTH MIAMI AVENUE AND SW/SE 6TH STREET I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury • B. Endorsements Required City of Miami included as an additional insured Premises & Operations Liability Contingent and Contractual Liability Explosion, Collapse and Underground Hazard. Additional Insured Endorsement Included II. Business Automobile Liability $ 1,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, Owned Autos, Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami included as an Additional Insured {28565468;2) III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation 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 IV. Umbrella Policy (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 3,000,000 Aggregate $ 3,000,000 B. Endorsements Required City of Miami included as an additional insured V. Owner's & Contractor's Protective A. Limits of Liability Each Occurrence $1,000,000 Aggregate Limit $1,000,000 City of Miami listed as named insured VI, Payment and Performance Bond $TBD City of Miami listed as Obligee {28565468;2} VII. Installation Floater (If Applicable) Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $5,000 All other Perils 5% maximum on Wind A. Limit/Value at Location or Site $ TBA B. Coverage Extensions: As provided by carrier VIII, Professional EEO Liability Each Claim $2,000,000 Policy Aggregate $2,000,000 Retro Date Included The above policies shall provide the City of Miami with written notice of cancellation or material changes in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Bests 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. {28565468;2}