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HomeMy WebLinkAboutExhibit BULI-The Urban Land Institute - Advisory Services Agreement Miami Waterfront This Agreement constitutes a binding contract between City of Miami, a municipal corporation of the State of Florida and the Miami Downtown Development Authority, a downtown development authority (collectively the "Sponsors") and ULI-the Urban Land Institute ("ULI"). As part of its purpose, the ULI maintains an Advisory Services Program for the purpose of benefiting organizations, governments and the general public through improved planning and utilization of land. The Sponsors wish to obtain advice and recommendations from the ULI on resilience, economic development and planning strategies for the Miami waterfront. 1. DUTIES OF ULI Pursuant to this Agreement, ULI agrees: 1. To provide a panel composed of members of ULI and others who collectively have a varied and broad experience and knowledge applicable to the particular problems to be considered. 2. To arrange for the panel members to visit the location upon which its recommendations are sought for a period of not less than five (5) days, starting on or about June 2, 2019. During that time, the panel, directly and through its staff, will study the designated area; consult with public and private officials, representatives of other relevant organizations, and other individuals familiar with the problems involved; and prepare its conclusions and recommendations which will be presented to the Sponsors and their invited guests in oral form at the close of the on -site assignment. 3. To provide the Sponsors with a full -color written summary of its conclusions and recommendations illustrated with photographs and drawings, as appropriate. 4. To absorb the travel and living expenses of its panel and staff while on site 5. "To use the Scope of Work, attached as Exhibit "A" to this Agreement as a guide for the panel recommendations." 6. To provide, at all times during the term hereof, such insurance coverage(s) as may be required by the City's Department of Risk Management. The insurance coverage(s) required for this Agreement are attached hereto as Exhibit "B" and incorporated herein by this reference. ULI shall add the Sponsors as additional insureds to its commercial general liability, and auto liability policies, and as a named certificate holder on all policies. ULI shall correct any insurance certificates as requested by the City's Risk Management Administrator. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and shall be furnished to the City Risk Management Administrator on Certificates of Insurance indicating such insurance to be in force and effect and any cancelled or non -renewed policy will be replaced with no coverage gap and a current Certificate of Insurance will be provided. Completed Certificates of Insurance shall be filed with the City prior to the performance of services hereunder, provided, however, that ULI shall at any time upon request file duplicate copies of the Certificate of Insurance with the Sponsors. 19-353/ 2/20/19 7. To comply with all other applicable laws, rules, and regulations in the performance of this Agreement. 2. DUTIES OF SPONSORS The Sponsors agree, at their expense: 1. To furnish each panel member, not less than 10 days in advance of the panel meeting, such pertinent available background data in the form of reports, plans, charts, etc., as may be presently available or readily developed, as practicable, for the preliminary study of the panel, prior to its inspection on site. Two copies are to be sent to ULI's Project Manager. 2. To coordinate and arrange, insofar as possible, to have appropriate persons, including available public and private officials, representatives, and employees of the relevant organizations, available for the purpose of consulting with and furnishing information to the panel on specific matters relevant to the assignment as may be necessary and advisable during the period of the panel's visit. 3. The cost of the panel is a total of $135,000. This amount of $135,000 is the maximum price inclusive of all fees, costs and expenses. $135,000. Each payment will be evenly split by each Sponsor separately. The Sponsors will not be liable for any fee, cost, other charge or reimbursable expense in excess of this amount, which is a maximum payment amount by the Sponsors. The first installation of $65,000 will be paid upon signing of this Agreement, provided that both Sponsors have signed. The second installment of $65,000 will be paid upon presentation of the panel's recommendations. The third and final payment of $5,000 will be paid when the Sponsors receive the final report. In the event the Sponsors cancel the panel assignment, the initial payment is non- refundable and Sponsors shall be responsible for any additional costs incurred by ULI up to the date of cancellation, unless the termination is due to the failure or refusal of ULI to comply with the public records provisions as described below. 3. GENERAL 1 It is understood that the fee paid by the Sponsors to ULI is to be solely used to cover the costs of the panel assignment and to support and encourage ULI's research and educational programs. 2. The Sponsors may make such noncommercial and municipal uses of the report as it may deem desirable. It is further understood that ULI may make such noncommercial use of the report prepared of the panel's findings and recommendations as it may deem desirable, and the Sponsors herewith specifically agree that ULI may publish and disseminate such report or any part thereof in conjunction with its research and educational programs. 3. ULI is acting in the capacity of an independent contractor hereunder and not as an employee, partner, representative, or agent of, or joint venturer with Sponsors. ULI does not have authority to enter into contracts on behalf of either of the Sponsors. 4. The performance of this Agreement by either party is subject to acts of God, war or threat of war, government regulation, acts of terrorism, disaster, fire, strikes, civil disorder, public health crises, curtailment of transportation facilities or other circumstance beyond the control of the parties unreasonably delaying or making it inadvisable, illegal or impossible for either party to perform its obligations hereunder. This Agreement may be terminated without penalty for any one (1) or more of such reasons by written notice from one party to the other; provided that the party delayed or unable to perform shall promptly advise the other party of such delay or impossibility of performance, and provided further that the party so delayed or unable to perform shall take reasonable steps to mitigate the effects of any such delay or nonperformance. 5. This Agreement is unique to ULI due to their expertise and is not assignable without prior written consent of the Sponsors which may be withheld or denied; provided that other party shall have the right to assign this Agreement to an affiliate upon prior written notice to the other party. In all other instances, neither party shall assign its rights or duties under this Agreement without prior written consent of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the respective parties and their authorized successors and assigns. 6. This Agreement constitutes the entire agreement between the parties regarding the services described herein and supersedes all prior agreements or understandings between the parties on this subject matter, whether written or verbal. 7. This Agreement may not be altered, amended or modified except by written document executed by all parties. 8. The parties agree that no persons other than the Sponsors and ULI (including any successors or assigns thereof) shall have any rights under this Agreement and that no third -party beneficiaries are contemplated in this Agreement. 9. The undersigned parties and their duly authorized representatives represent and warrant that they have authority to enter into this Agreement and hereby agree to the terms set forth above. 4. RECORDS 1. ULI agrees to provide access to either or both of the Sponsors or to any of its duly authorized representatives, to any books, documents, papers, and records of ULI which are directly pertinent to this Agreement, for the purpose of audit, examination, excerpts, and transcripts. One or both of the Sponsors may, at reasonable times, and for a period of up to three (3) years following the date of final payment by either Sponsor to ULI under this Agreement, audit and inspect, or cause to be audited and inspected, those books, documents, papers, and records of ULI which are related to ULI's performance under this Agreement. ULI agrees to maintain any and all such books, documents, papers, and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement and all other pending matters are closed. ULI's failure to adhere to, or refusal to comply with, this condition shall result in the immediate cancellation of this Agreement by either Sponsor without financial recourse by ULI to the DDA or City. ULI understands that the public shall have access, at all reasonable times, to all available documents and information pertaining to the Sponsors and this Agreement, subject to the provisions of Chapter 119, Florida Statutes, and any specific exemptions there from, and ULI agrees to allow access by the City and the public to all documents subject to disclosure under applicable law unless there is a specific exemption from such access. ULI's failure or refusal to comply with the provisions of this section shall result in immediate termination of the Agreement by the Sponsors. 2. Public Records. Pursuant to the provisions of Chapter 119.0701, Florida Statutes, ULI must comply with the Florida Public Records Laws, specifically ULI must: a. Keep and maintain public records that ordinarily and necessarily would be required by the Sponsors in order to perform the services under this Agreement. b. Provide the public with access to public records on the same terms and conditions that the Sponsors would provide the records and at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. c. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. d. Meet all requirements for retaining public records and transfer, at no cost to the Sponsors, all public records in possession of ULI upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. e. All records stored electronically must be provided to the Sponsors in a format compatible with the information technology systems of the Sponsors. f. ULI agrees that any of the obligations in this Section will survive the term, termination, and cancellation hereof. g. IF ULI HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO ULI'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT AS A PUBLIC CONTRACT, PLEASE CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS AT THE CITY'S DEPARTMENT OF RESILIENCE AND PUBLIC WORKS AT 8TH FLOOR, MIAMI RIVERSIDE CENTER, 444 S.W. 2ND AVENUE, MIAMI, FLORIDA 33130, TELEPHONE NUMBER 305-416-1200 AND E-MAIL AT INTERNETPUBLICWORKS a@MIAMIGOV.COM. 5. MISCELLANEOUS 1. Ownership of Documents. All tracings, plans, drawings, specifications, maps, computer files, and/or reports prepared or obtained under this Agreement, as well as all data collected, together with summaries and charts derived there from, including all electronic digital copies will be considered works made for hire and will, based on incremental transfer wherein the above shall become the property of the City upon payments made to ULI or termination of the Agreement without restriction or limitation on their use, and will be made available, on request, to the City at any time during the performance of such services and/or upon completion or termination of this Agreement. ULI shall not copyright any material and products or patent any invention developed under this Agreement. The City shall have the right to visit the site for inspection of the work and the products of ULI at any time. ULI shall be permitted to retain copies, including reproducible copies, solely for information and reference in connection with the City's use and occupancy of the Project. Notwithstanding the foregoing, ULI upon the City's written consent, may utilize Advisory Service Panel reports produced for the City as a part of this Agreement in the following manner: a) as examples of ULI's work products, b) on ULI's web site; and c) as a reference in other documents, reports and studies. 2. Delivery Upon Request or Cancellation. Failure of ULI to promptly deliver all such documents, both hard copy and digital, to the Director or designee within ten (10) days of cancellation, or within ten (10) days of request by the City, shall be just cause for the City to withhold payment of any fees due ULI until ULI delivers all such documents. ULI shall have no recourse from these requirements. 3. Re -Use by City. It is understood that all ULI agreements and/or Work Orders for new work will include the provision for the re -use of plans and specifications, including construction drawings, at the City's sole option, and by virtue of signing this Agreement, ULI agrees to such re -use in accordance with this provision without the necessity of further approvals, compensation, fees or documents being required and without recourse for such re -use. ULI will not be liable for re -use by the City of plans, documents, studies, or other data for any purpose other than that intended by the terms and conditions of this Agreement. 4. Audit Rights. The City reserves the right to audit ULI's accounts during the performance of this Agreement and for three (3) years after final payment under this Agreement. ULI agrees to furnish copies of any records necessary, in the opinion of the Director, to approve any requests for payment by ULI. The inspection and audit provisions provided for City contracts set forth in §18-101 and § 18-102, City Code, are applicable to this Agreement and are deemed as being incorporated by reference herein. 5. Applicable Law and Venue of Litigation. This agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out of this Agreement, shall be brought in Miami - Dade County, Florida. Each party shall bear its own attorney's fees and costs. 6. Notices. Whenever either party desires to give notice unto the other, such notice must be in writing, sent by registered United States mail, return receipt requested, addressed to the party for whom it is intended at the place last specified; and the place for giving of notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. For the present, the parties designate the following as the respective places for giving of notice: FOR CITY OF MIAMI: Emilio T. Gonzalez, Ph. D. City Manager 444 S.W. 2nd Ave., 10th Floor Miami, Florida 33130 With copy to: Jane Gilbert Chief Resilience Officer Office of Resilience and Sustainability 444 SW 2nd Avenue, 10th Floor Miami, FL 33130 FOR ULI: Tom Eitler Senior Vice President Urban Land Institute 2001 L Street NW, Suite 200 Washington, DC 20036 7. Interpretation. The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, paragraph, or section where they appear, unless the context otherwise requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section, unless the reference is made to a particular subsection or subparagraph of such Section or Article. 8. Joint Preparation. Preparation of this Agreement has been a joint effort of the City and ULI and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than any other. 9. Priority of Provisions. If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, or provision of this Agreement, the term, statement, requirement, or provision contained in this Agreement shall prevail and be given effect. 10. Mediation - Waiver of Jury Trial. In an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and /or construction of the subject project(s), and/or following the completion of the projects(s), the parties to this Agreement agree all disputes between them shall be submitted to non -binding mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties. A certified Mediator, who the parties find mutually acceptable, will conduct any Mediation Proceedings in Miami -Dade County, State of Florida. The parties will split the costs of a certified mediator on a 50/50 basis. Each party will bear their own attorney's fees. In an effort to expedite the conclusion of any litigation the parties voluntarily waive their right to jury trial or to file permissive counterclaims in any action arising under this Agreement. 11. Compliance with Laws. ULI shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions including, without limitation, the Americans with Disabilities Act ("ADA"), as amended, and all applicable guidelines and standards in performing its duties, responsibilities, and obligations related to this Agreement. ULI represents and warrants that there shall be no unlawful discrimination as provided by law in connection with the performance of this agreement. 12. Non -Discrimination. ULI further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 13. Independent Contractor. ULI has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. Accordingly, ULI shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. ULI further understands that Florida Workers' Compensation benefits available to employees of the City are not available to ULI, and agrees to provide workers' compensation insurance for any employee or agent of ULI rendering services to the City under this Agreement. 14. Contingency Clause: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days' notice. 15. Third Party Beneficiary. ULI and the City agree that it is not intended that any provision of this Agreement establishes a third -party beneficiary giving or allowing any claim or right of action whatsoever by any third party under this Agreement. 6. INSURANCE ULI must submit the insurance coverages specified in Exhibit B on or before execution of this Agreement. THE I.NSTITt1TE DOWNTOWN DEVELOPMENT AUTHORITY Paul Bernard, EVP Advisory Services Alyce M. Robertson, Executive Director Date: Z (Z S7/ ci Date Tom Eitler, Senior Vice President Date: 6 9 ATTEST CITY OF MIAMI Todd B. Hannon, City Clerk Emilio T. Gonzalez, City Manager Date: Date: Approved as to Legal Form and Correctness Approved as to Insurance Requirements Victoria Mendez, City Attorney Ann -Marie Sharpe, Director of Risk Management Date: Date: Exhibit A Draft Scope The City of Miami ("City") has been on the forefront of resilient planning and recently started evaluating innovative ways to address the impacts of sea level rise and climate change through new and more adaptive strategies. Of special interest is Miami's first line of defense- its waterfront. The scope of this panel will include the Miami's urban waterfront from SE 26th Street (Southern Boundary) to NE 36th Street (Northern Boundary) to NW 27th Avenue (Western Boundary) along the Miami River. With more than 92,000 residents, a daytime population of more than 250,000 and market value of properties in the Urban Waterfront area exceeding $39 Billion, there is no doubt that Greater Downtown Miami is the economic engine for South Florida. Furthermore, our population is projected to continue growing at a 4 percent annual rate. As home to more than 53,000 residential units, with another 9,000 units in permitting or under construction, our property values will only continue to grow. Greater Downtown boasts more than 25 million square feet of office space, with another 700,000 square feet on the way and more than 8,000 hotel rooms with another 3500 planned in the next five years. Along the Miami River and Biscayne Bay there are public Bay and Riverwalks, 12 major parks and 18 historic sites, 25 boatyards and marinas, over a dozen International Shipping Terminals, and other job -generating marine industrial businesses. In order to protect these essential economic, natural and human resources, we must focus on strengthening the resilience of our waterfront areas with the ability to adapt infrastructure and development for future changing conditions. The more resilient we make our waterfront; the less damage or disruption will be inflicted by inclement weather and high tides. We must continue to mitigate risk and avoid debilitating direct and indirect costs from storm related damages through wise, calculated investments to strengthen our resilience and protect our neighborhoods. At the same time, we aim to maximize the environmental, social and economic benefits of those investments, such addressing the need for quality open space, access to the water and multimodal mobility. As part of the process of updating its Stormwater Master Plan, City of Miami recently completed a drone and aerial photogrammetry and LiDAR survey of its complete waterfront. Last year, the residents of the City voted to approve a $400-million General Obligation Bond, known as "Miami Forever," to fund implementation of five major categories of infrastructure improvements selected by the City Commission. Specifically, $192 million is dedicated to mitigation and adaptation measures to address sea level rise and flooding. Furthermore, the US Army Corps of Engineers is conducting a study that will evaluate structural and nonstructural options to reduce damages due to storm surge damage in Miami -Dade County. The study area includes the coastal and inland areas of Miami -Dade County that are at risk from coastal storm surge induced flooding. Together, these three initiatives provide the opportunity for Miami's urban core to develop a robust, future oriented waterfront investment strategy that promotes and enhances its resilience. The City of Miami needs to update its waterfront design standards in Miami211 and the Miami River Greenway PIan2 to take into account current and future increases in density and risks associated with climate change 2 Miami21 Section 3.12 and Appendix B Miami River Greenway Plan and sea level rise. A continued piecemeal approach of investments will result in non-contiguous and to some extent ineffective attempts to mitigate risks and increase quality of life. The scope of the panel should include recommended methods of investment, both private and public, as well as changes to policy, design guidelines and processes for future construction, specifically as they apply to waterfront and waterfront adjacent properties. Below are the four focus areas to address during the panel's Miami immersion: 1. Develop updated minimum design guidelines waterfront design standards with three building typologies such as multifamily residential, commercial and office in several different topographies with the overarching objective of meeting the City's resilience goals and meeting other applicable standards such as the City's Form Based Code. These design alternatives should consider and address the increasing flood risks on the physical and economic viability of the waterfront, including insurance rates and real estate investment, public access and enhanced livability. At a minimum, Design Guidelines for infrastructure resilience shall include: a. Reduce the duration of flooding conditions and effectiveness for rapid recovery b. Consideration for sea -level rise and storm events and increased rainfall c. Accommodations for public access and marine access d. Maintenance considerations such as costs and efficiencies e. Coastal Protection that incorporates wave attenuation (stronger seawalls, mangroves, breakwater structures, etc. f. Increase drainage capacity g. Modify hydraulic grade line to accommodate seal level rise h. Groundwater levels and buoyant pressures on building foundations 2. Define public and private sector roles and recommend financing strategies for infrastructure improvements along the waterfront — green and grey infrastructure improvements that will provide the greatest return on investment and meeting the City's resilience goals. • Recommend other private, state, federal and local grants and financing options, such as: • Special Assessments - The Florida Statutes provide broad authority to municipalities to levy special assessments to fund, among other things: (1) guttering and draining of streets, boulevards, and alleys; (2) construction, reconstruction, repair, renovation, and upgrading of sewer, canal, drains, and stormwater management systems; (3) construction and reconstruction of water supply systems, including aquifer storage and recovery, and desalination systems; (4) construction and reconstruction of seawalls; and (5) drainage and reclamation of wet, low, or overflowed lands. • Explore feasibility of a nonprofit waterfront conservancy to attract private sector investment in the river and bay walks other coastal infrastructure. • Development Impact Fees - might require a developer to pay a fee to cover the cost of flood -proofing infrastructure that services the new development. ■ State, Federal and Grants: HUD, FEMA, NOAA, USACE 3. Develop a policy direction that informs both private and public property modifications to enhance flooding and storm surge resiliency, with a specific focus on hi -rises and historic buildings that cannot be elevated and are not likely to be demolished. • Identify what the steps the most forward -thinking cities are taking to ensure protection of their waterfront assets and apply it to Miami. 4. Integrate the above recommendations into an action plan or steps the city should take in the short, medium and long-term. This Action Plan will be integrated with and leverage other resilience planning work underway, such as the Resilient Greater Miami and the Beaches Strategy, the USACE's back bay study and the City of Miami's Stormwater Master Plan and overall strategic plan. EXHIBIT B INSURANCE REQUIREMENTS -PROFESSIONAL SERVICES AGREEMENT ULI PANEL CONTRACT Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required $1,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 City of Miami & DDA listed as additional insured Contingent & Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami & DDA listed as an additional insured III Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim General Aggregate Limit Retro Date Included $1,000,000 $1,000,000 V. Network Security and Privacy Injury (Cyber Liability) If Applicable Each Claim Policy Aggregate Retro Date Included $1,000,000 $1,000,000 ULI agrees to maintain professional liability/Errors & Omissions coverage, along with Network Security and Privacy Injury (Cyber) coverage, if applicable, for at least 2 years after termination of the contract period subject to continued availability of commercially reasonable terms and conditions of such coverage. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer 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 Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and for certificates of insurance are subject to review and verification by Risk Management prior to insurance approval.