Loading...
HomeMy WebLinkAboutExhibitLOCALLY FUNDED AGREEMENT (Off SHS-Construction Contingency Costs) THIS LOCALLY FUNDED AGREEMENT (hereinafter `Agreement') is made and entered into this day of , 20, between the CITY OF MIAMI, a Municipal Corporation, hereinafter referred to as the `CITY', and the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION a component agency of the State of Florida, hereinafter referred to as the 'DEPARTMENT'. RECITALS: WHEREAS, included in the Department's Approved 5-year Work Program is PROJECT Number FM No. 426113-1 (the "PROJECT") on NW 34th Avenue Bridge over Comfort Canal, within the limits of approximately north of SR 836 / Dolphin Expressway and NW 14th Street (the "PROJECT LIMITS"), in Miami -Dade County, Florida (within the corporate limits of the CITY), a road not on the State Highway Systems; WHEREAS, the CITY has jurisdiction over and maintains NW 34th Avenue, between north of SR 836 / Dolphin Expressway and NW 14th Street; and WHEREAS, pursuant to an Off -System Construction and Maintenance Agreement between the DEPARTMENT and the CITY, the CITY has authorized the DEPARTMENT to construct the PROJECT; and WHEREAS, the DEPARTMENT is utilizing federal funds for the construction of the PROJECT; and 1 Construction funds are currently programmed for FY19 Page 1 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 WHEREAS, the PROJECT is off of the "State Highway System," and therefore, in accordance with Section 339.08(1), F.S., State funding cannot be used for payments of non -participating costs on the PROJECT; and WHEREAS, the "Construction Contingency Costs" of the PROJECT, as further defined in Section two (2) below, require the CITY's participation; and WHEREAS, the CITY shall deposit funds in escrow with the State of Florida, Department of Financial Services, Division of Treasury, in the amount set forth in Exhibit B-1, to cover said Construction Contingency Costs; and WHEREAS, FDOT is authorized to enter into this Agreement pursuant to Sections 334.044(7) and 339.12, F. S., and authorizes its officers to do so; and WHEREAS, the CITY, by and through Resolution No. , attached hereto as Composite Exhibit C, has duly authorized the execution and delivery of this Agreement and agrees to be bound by the terms hereunder, and has further authorized the City Manager or designee to take all necessary steps to effectuate the terms of this Agreement; NOW, THEREFORE, in consideration of the premises, the mutual covenants and other valuable considerations contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties 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. "Construction Contingency Costs" Definition. Construction Contingency Costs shall refer to any increased PROJECT cost resulting in supplemental payment to the construction contractor, Page 2of17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 including, but not limited to, increased costs for extra work, project modifications, delay claims, errors and omissions claims, etc. 3. Local Government Liability for Federal Non -Participating Costs. In the event there are cost overruns, supplemental agreements (specifically incurred in the areas located off the State Highway System), and or liquidated damages not eligible to be paid for by federal funds due to the Federal Highway Administration determining that said costs are non- participating costs, the CITY shall be responsible for one -hundred percent (100%) of the funds required to make up the shortfall not paid by federal funds. Said shortfall shall be referred to herein as "Non -Participating Construction Contingency Costs", or alternatively as "non- participating costs". (Examples of non -participating costs could be (but are not limited to): maintenance costs (such as mowing or litter removal), utility impacts, fishing piers; premium costs due to design or CEI errors or omissions; material or equipment called for in the plans but not used in the construction, as referenced in the Federal Aid Policy Guide 23, CFR Section 635.120). 4. General Requirements. a) The DEPARTMENT will administer and construct the PROJECT in accordance with the signed and sealed PROJECT plans, and as detailed in the attached Exhibit "A", `Scope of Services', and in accordance with the latest version of the DEPARTMENT' S Construction DEPARTMENT OF TRANSPORTATION Construction Project Administration Manual (CPAM, Procedure 700-000-000). The CITY will provide funding to the DEPARTMENT, in the aggregate amount of EIGHTY THOUSAND DOLLARS ($80,000.00) to be used to pay for the PROJECT Construction Contingency Costs, subject further to the provisions in Page 3 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 Section 5 of this Agreement and as outlined in the attachment Exhibit "B", `Financial Summary', incorporated herein by reference. b) The DEPARTMENT Contractor will not commence work on the PROJECT until CITY funding for the PROJECT is on deposit with the DEPARTMENT. 5. Financial Provisions. a) The CITY agrees that it will, at least fourteen (14) calendar days prior to the DEPARTMENT' s advertising of the PROJECT, furnish the DEPARTMENT a deposit in the amount of EIGHTY THOUSAND DOLLARS ($80,000.00) for the Construction Contingency Costs estimated for the PROJECT, under FM# 426113-1-52-01. The DEPARTMENT may utilize this deposit for payment of any Construction Contingency Costs of the PROJECT. The DEPARTMENT shall solicit approval for Federal Aid participation in all PROJECT cost increases resulting in supplemental payment from CITY funds provided pursuant to this Agreement. Federal Aid participation shall be determined as required by Federal Aid Policy Guide 23, CFR Section 635.120. Upon receipt of Federal Aid participation approval for any expenditure, the approved amount shall be credited to the CITY's account to replace any CITY funds that may have been previously applied towards the subsequently approved expenditure. In this manner, federal funding of expenditures shall replace CITY funding, as expenditures get Federal Aid participation approval. b) In the event that the DEPARTMENT encounters a Construction Contingency Cost in an amount exceeding Twenty Thousand Dollars ($20,000.00), which the DEPARTMENT anticipates will be Federal Aid Non -participating, the DEPARTMENT will notify the CITY' s designated project construction liaison (as designated by the Page 4 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 CITY in Paragraph Nine (9) below and as may be updated with notice provided to the DEPARTMENT in compliance with Paragraph Nine (9) below). The DEPARTMENT will consider any input provided from the CITY, if provided within the schedule proposed by the DEPARTMENT to avoid delay to the DEPARTMENT' s construction contract. Input provided by the CITY shall not be binding upon the DEPARTMENT, and the DEPARTMENT shall have sole authority over payment of all Construction Contingency Costs necessary to complete the construction of the Project. The DEPARTMENT's failure to notify the CITY and to obtain input from the CITY regarding anticipated non -participating costs shall not affect the CITY's obligation to pay all Non -Participating Construction Contingency Costs. c) The CITY understands that the Construction Contingency Costs may be subject to increase(s) and agrees to provide additional funds in the event of any increase(s). The DEPARTMENT will notify the CITY as soon as any increase(s) become apparent; however, failure of the DEPARTMENT to so notify the CITY shall not relieve the CITY from its obligation to provide funding for all of the Construction Contingency Costs during the PROJECT and to pay all Non -Participating Construction Contingency Costs on final accounting. The CITY shall provide additional deposit(s) under specified situations within the stated time period as follows: i. Should a shortfall exceeding the amount on deposit occur due to a determination that costs are non -participating, the CITY agrees to provide, without delay, an additional deposit to cover the excess shortfall, within thirty (30) calendar days of notification from the Department, to ensure that cash on deposit with the Department is sufficient to fully fund the shortfall. Page 5 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 The Department shall notify and meet with the CITY as soon as it becomes apparent there is an excess shortfall. However, failure of the Department to so notify the CITY shall not relieve the CITY of its obligation to pay for its full participation of non -participating costs during the Project and on final accounting, as provided herein below. If the CITY cannot provide the deposit within thirty (30) days, a letter must be submitted to and approved by the Department's contract manager indicating when the deposit will be made. The CITY understands the request and approval of the additional time could delay the PROJECT, and additional non -participating costs may be incurred due to the delay of the PROJECT. ii. Construction Contingency Costs not paid within forty (40) calendar days from the date of the invoice are subject to an interest charge at a rate established pursuant to Section 55.03, Florida Statutes. iii. In the event the final accounting of total non -participating costs are greater than the total deposits to date, the CITY will pay the additional amount within forty (40) calendar days from the date of the invoice from the Department. The CITY agrees to pay interest at a rate as established pursuant to Section 55.03, F.S., on any invoice not paid within forty (40) calendar days until the invoice is paid. The payment of funds under this Agreement provision will be made directly to the Department for deposit. iv. In the event the final accounting of total non -participating costs are less than the total deposits made by the CITY, the DEPARTMENT will reimburse the Page 6 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 CITY to additional amount within forty (40) days from the date of the final accounting. d) The DEPARTMENT intends to have its final and complete accounting of all costs incurred in connection with the work performed hereunder within three hundred and sixty (360) days of final payment to the Contractor. The DEPARTMENT considers the PROJECT complete when final payment has been made to the Contractor, not when the construction work is complete. All PROJECT cost records and accounts shall be subject to audit by a representative of the CITY for a period of three (3) years after final close out of the PROJECT. Cost records will be made available to the CITY in Miami -Dade County. The CITY will be notified of the final cost. Both parties agree that in the event final accounting of total PROJECT Non -Participating Construction Contingency Costs pursuant to the terms of this Agreement is less than the total deposits to date, a refund of the excess will be made by the DEPARTMENT to the CITY. If the final accounting is not performed within three hundred and sixty (360) days, the CITY is not relieved from its obligation to pay. e) The payment of funds under this Locally Funded Agreement will be made directly to the DEPARTMENT for deposit and as provided in the attached Exhibit "D", Escrow Agreement ("EA") between the CITY, the DEPARTMENT and the State of Florida, Department of Financial Services, Division of Treasury. All interest earned will remain in the account for the benefit of the PROJECT, in accordance with the terms of this Agreement. Upon completion of the project and after final accounting, excess principal and interest, if any after payment of all Non -Participating Construction Contingency Costs, will be returned to the CITY. Page 7of17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 f) Nothing in this Agreement shall be construed to violate the provisions of Section 339.135(6)(a), Florida Statutes, which provides as follows: "The Department, during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void, and no money may be paid on such contract. The Department shall require a statement from the Comptroller of the Depaitinent that such funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein contained shall prevent the making of contracts for periods exceeding one year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years; and this paragraph shall be incorporated verbatim in all contracts of the Department which are for an amount in excess of TWENTY FIVE THOUSAND DOLLARS ($25,000.00) and which have a term for a period of more than one year." 6. Effective Date of this Agreement. This Agreement shall become effective upon execution by the CITY and the DEPARTMENT, which is the date set forth on page one (1) hereof. 7. Provisions Separable. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. Page 8 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 8. Amendment of Agreement. This Agreement may only be amended by mutual agreement of the DEPARTMENT and the CITY, expressed in writing and executed and delivered by each. 9. Notices. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received when delivered (personally, by courier service such as Federal Express, or by other messenger) against receipt or upon actual receipt of registered or certified mail, postage prepaid, return receipt requested, addressed as set forth below: (a) If to the CITY: (b) If to the DEPARTMENT: City of Miami -Office of Capital Improvements Miami Riverside Center 444 SW 2nd Avenue, 8th Floor Miami, Florida 33130 Attention: Jose L. Lago, PE, CFM Ph: (305) 416-1252; Fax: (305) 416-2153 Email: jlago@miamigov.com With a copy to: Emilio T. Gonzalez, Ph.D. 444 SW 2nd Avenue Miami, Florida 33130 Florida Department of Transportation 1000 NW 111 Avenue, Room 6202B Miami, Florida 33172 Attention: Mario L. Cabrera, PE District Six Construction Engineer 1000 NW 111 Avenue Miami, Florida 33172-5800 Office: 305-640-7445 Fax: 305-640-7430 Email: Mario.Cabrera@dot.state.fl.us Page 9 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 Any party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this paragraph for the giving of notice. 10. Entire Agreement. This Agreement, including its attached Exhibits, contain the sole and entire Agreement between the parties with respect to such subject matter and supersede any and all other prior written or oral agreements between them with respect to such subject matter. 11. Binding Effect. This Agreement shall be binding upon the parties and their respective representatives, successors and assigns. 12. Waiver. Waiver by either party of any breach of any provision of this Agreement shall not be considered as or constitute a continuing waiver or a waiver of any other breach of the same or any other provision of this Agreement. 13. Captions. The captions contained in this Agreement are inserted only as a matter of convenience or reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any of its provisions. 14. Absence of Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to (a) confer upon any entity or person other than the parties and their permitted successors and assigns any rights or remedies under or by reason of this Agreement as a third party beneficiary or otherwise except as specifically provided in this Agreement; or (b) authorize anyone not a party to this Agreement to maintain an action pursuant to or based upon this Agreement. 15. Other Documents. The parties shall take all such actions and execute all such documents which may be reasonably necessary to carry out the purposes of this Agreement, whether or not specifically provided for in this Agreement. Page 10 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 16. Governing Law; Venue; Attorney's; Fees. This Agreement and the interpretation of its terms shall be governed by the laws of the State of Florida, without application of conflicts of law principles. Venue for any judicial, administrative or other action to enforce or construe any term of this Agreement or arising from or relating to this Agreement shall lie exclusively in Miami -Dade County, Florida. Each party shall bear their own attorney' s fees. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the day and year first above written, the CITY, signing by and through its Manager or designee, and the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, signing by and through its District Secretary, each duly authorized to execute same. CITY OF MIAMI: STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION: BY: BY: CITY MANAGER DISTRICT SECRETARY ATTEST: ATTEST: (SEAL) CITY CLERK (SEAL) EXECUTIVE SECRETARY Approved by Department: City of Miami -Office of Capital Improvements, Director LEGAL REVIEW: Approved as to legal from and correctness: Page 11 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 Victoria Mendez, CITY ATTORNEY DISTRICT CHIEF COUNSEL Page 12 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 EXHIBIT 'A' SCOPE OF SERVICES The PROJECT work consists of non -participating federal funding items related to the construction of a bridge replacement along NW 34th Avenue from approximately north of SR 836 / Dolphin Expressway to NW 14th Street in accordance with the plans and specifications as approved by the DEPARTMENT, attached hereto and incorporated by reference. PROJECT LIMITS: NW 34th Avenue (a road not on the State Highway System) from approximately north of SR 836 / Dolphin Expressway to NW 14th Street DEPARTMENT Financial PROJECT Number: 426113-1-52-01 LIMITS OF CITY OF MIAMI RIGHT OF WAY WITHIN THE LIMITS OF THE PROJECT: NW 34th Avenue corridor, further described as follows: NW 34th Avenue right of way, as measured from the center line, between north of SR 836 / Dolphin Expressway to NW 14th Avenue. COUNTY: Miami -Dade DEPARTMENT PROJECT Manager: Bao-Ying Wang, PE CITY PROJECT Manager: Jose L. Lago, PE, CFM Page 13 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 EXHIBIT `B' FINANCIAL SUMMARY The DEPARTMENT's Work Program allocates the following funding, programmed under Financial PROJECT Number 426113-1-52-01, for PROJECT completion: Fiscal Year: 2019 Amount: $80,000.00 Fund Type: Local Funds (LF) CITY OF MIAMI FINANCIAL RESPONSIBILITY: $ 80,000.00 Incorporated herein by reference is Exhibit "B 1", cost estimate. Page 14 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 EXHIBIT `Bl' COST ESTIMATE Item Cost 1. 5% of Construction Cost $80,000.00 TOTAL $80,000.00 Page 15 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 COMPOSITE EXHIBIT 'C' CITY RESOLUTION To be attached hereto and incorporated herein once ratified by the City of Miami Commission. Page 16 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 EXHIBIT `D' ESCROW AGREEMENT Page 17 of 17 Locally Funded Agreement between the City of Miami and the Florida Department of Transportation, Financial PROJECT Number 426113-1-52-01 350-020-300-o Page 27 of 29 ATTACHMENT F THREE PARTY ESCROW AGREEMENT THIS AGREEMENT is made and entered into by and between the State of Florida, Department of Transportation ("FDOT"), ("Participant"), and the State of Florida, Department of Financial Services, Division of Treasury ("Escrow Agent"), and shall become effective upon the Agreement's execution by Escrow Agent. WHEREAS, FDOT and Participant are engaged in the following project ("Project"): Project Name: Project #: County: WHEREAS, FDOT and Participant desire to establish an escrow account for the project. NOW THEREFORE, in consideration of the premises and the covenants contained herein, the parties agree to the following: 1. An initial deposit will be made into an interest bearing escrow account established hereunder for the purposes of the Project. The escrow account will be opened with the Escrow Agent on behalf of FDOT upon Escrow Agent's receipt and execution of this Agreement. 2. Other deposits to the escrow account may be made during the life of this agreement. 3. Deposits will be delivered in accordance with instructions provided by the Escrow Agent to the FDOT for deposit into the escrow account. A wire transfer or ACH deposit is the preferred method of payment and should be used whenever possible. 4. FDOT's Comptroller or designee shall be the sole signatory on the escrow account with the Escrow Agent and shall have sole authority to authorize withdrawals from the account. Withdrawals will only be made to FDOT or the Participant in accordance with the instructions provided to the Escrow Agent by FDOT's Comptroller or designee. 5. Moneys in the escrow account will be invested in accordance with section 17.61, Florida Statutes. The Escrow Agent will invest the moneys expeditiously. Income is only earned on the moneys while invested. There is no guaranteed rate of return. Investments in the escrow account will be assessed a fee in accordance with Section 17.61(4)(b), Florida Statutes. All income of the investments shall accrue to the escrow account. 6. Unless instructed otherwise by FDOT, all interest accumulated in the escrow account 350-020-300-o Page 28 of 29 shall remain in the account for the purposes of the Project. 7. The Escrow Agent agrees to provide written confirmation of receipt of funds to FDOT. FDOT agrees to provide a copy of such written confirmation to Participant upon request. 8. The Escrow Agent further agrees to provide quarterly reports to FDOT concerning the escrow account. FDOT agrees to provide a copy of such quarterly reports to Participant upon request. 9. The Escrow Agent shall not be liable for any error of judgment or for any act done or omitted by it in good faith, or for anything which it may in good faith do or refrain from doing in connection herewith. 10. Escrow Agent shall have no liability for any claim, cost, expense, damage or loss due to the acts or omissions of FDOT and Participant, nor from any separate agreements between FDOT and Participant and shall have no responsibility to monitor or enforce any responsibilities herein or in any separate agreements associated with this Agreement between FDOT and Participant. 11. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida. 12. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 13. This Agreement shall terminate upon disbursement by the Escrow Agent of all money held by it in the escrow account in accordance with the instructions given by FDOT's Comptroller or designee and notification from FDOT to Escrow Agent that the account is to be closed. The remainder of this page is blank. 350-020-300-o Page 29 of 29 IN WITNESS WHEREOF, the parties have duly executed the Agreement on the date(s) below. For FDOT-OOC (signature) For PARTICIPANT (signature) Name and Title Name and Title 59-3024028 Federal Employer I.D. Number Federal Employer I.D. Number Date Date FDOT Legal Review: For Escrow Agent (signature) Name and Title Date