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HomeMy WebLinkAboutAttachment-12425DONATION AND INSTALLATION AGREEMENT THIS DONATION, INSTALLATION, AND MAINTENANCE AGREEMENT (hereinafter called the "Agreement") made and entered into this day of , 2019, by and Simply Healthcare Plans, Inc., located at 9250 W. Flagler, Suite 600, Miami, Florida 33174, ("Simply"), and the CITY OF MIAMI, FLORIDA a municipal corporation of the State of Florida, in the county of Miami -Dade, (the "City") (Simply, together with the City referred to as the "Parties"). RECITALS WHEREAS, the City owns, operates and maintains that certain real property located at 1350 NW 50th St, Miami, FL 33142 (the "Park"), also known as Charles Hadley Park Center; and WHEREAS, the City Commission, pursuant to Resolution No. R-19-, a copy of which is attached hereto as Exhibit A; and WHEREAS, Simply has agreed to provide and install certain equipment, fixtures, furnishings and improvements for fitness room and adjacent general use room at the Park ("Improvements") in accordance with the terms of this Agreement. NOW THEREFORE, in consideration for the express grant by City of the right and license to provide and allow construction of Improvements within the Park, subject to the terms and conditions set forth herein, Simply does hereby agree with the City as follows: 1. RECITALS. The foregoing recitals are true and correct and are made a part hereof. 2. SCOPE. Prior to November 1, 2019, Simply (performing the work itself or through a contractor engaged by Simply to perform the work) shall install the Improvements in substantial accordance with the drawings and renderings approved by the City of Miami Parks and Recreation Department, attached hereto as Exhibit B. Upon completion and written acceptance of the Improvements by the Director of Parks and Recreation Department, the City will display Simply signage as demonstrated in Exhibit B in the Park. 3. ACCESS. Simply (performing the work itself or through a contractor engaged by SIMPLY to perform the work) shall, at Simply's sole cost and expense, installation of Improvements. The City agrees to provide Simply limited, non-exclusive use of the Park, during normal Park hours of operation, for the construction, installation, maintenance, replacement, repair, improvement, and/or modification of the Park in accordance with Exhibit B. The City reserves the right to deny Simply to access, to enter, or to remain in the Park for reasonable cause based on destruction of City property, Simply's negligence, or intentional torts caused by Simply's employees, officers, agents. 4. CURE. Subject to the provisions of Section 3 above, in the event Simply, its agents, representatives, designees, successors, or assigns fail in the reasonable discretion of the City's Director of the Parks and Recreation to properly construct or install the Improvements, so that the Improvements are becoming or becomes a hazard to the health, welfare, or safety of the general public, the City shall give Simply written notice of such failure via certified mail, return receipt requested, and Simply shall, at Simply's sole cost and expense, within fifteen (15) calendar days from receipt of such notice, abate such hazard, if and as applicable, by either (i) curing the stated issue in the written notice, or (ii) removing the Improvements, or any part thereof. 5. ALTERATION OR REMOVAL. The Improvements may not be altered, relocated or removed unless City within its sole discretion desires for its alteration, relocation or removal. The City shall allow for Simply sign -age to remain in the room as shown in Exhibit B for a minimum of two years from the date of this Agreement. 6. AUTHORITY. It is expressly understood and agreed that this instrument shall be binding upon the City and Simply and also upon their successors in interest, or assigns. The Parties warrant and represent that the signatories have authority to enter into this Agreement and bind the respective Parties. 7. NOTICE. Any notice, request, demand, approval, or consent given or required to be given under this Agreement shall be in writing and shall be deemed as having been given when mailed by United States registered or certified mail, return receipt requested, postage prepaid, to the other parties at the addresses stated below or at the last address provided by a party to the other party at which to receive notice: SIMPLY: CITY: With Copy: CITY MANAGER City of Miami 444 SW 2nd Avenue, 10''' Floor Miami, FL 33130 Director of Parks and Recreation Department City of Miami 444 SW 2nd Avenue, 8'1' Floor Miami, FL 33130 8. NO CONVEYANCE OR JOINT VENTURE. Simply expressly acknowledges (i) that the permission granted by the City to provide and install the Improvements at the Park is solely for the limited purposes set forth herein and does not constitute a lease, (ii) the City retains possession and control of property owned by the City, (iii) if Simply breaches any term of this Agreement, receives written notice of such breach from the City, and does not timely cure such breach, within fifteen (15) days after receipt of such written notice (provided, however, that in the event that such cure cannot reasonably be completed within such fifteen (15) day period, then Simply shall have such additional cure period as is reasonably required provided that Simply commences such cure within fifteen (15) day Page 2 of 11 period and diligently pursues the same until completion), then the City may unilaterally revoke the permission granted herein to Simply by written notice to Simply delivered prior to the date on which Simply cures such breach, and (iv) Simply does not and shall not claim at any time any interest or estate of any kind or extent in land owned by the City by virtue of its use hereunder or by virtue of any expenditures incurred in connection herewith. 9. INSURANCE: Simply shall, at all times during the term of this Agreement, maintain insurance coverages in the amount listed in Exhibit C, as approved by the Department of Risk Management of the City. 10. RISK: Simply acknowledges it is proceeding at its own risk and acknowledges that it will not make a vested/property rights claim or other cause of action arising or accruing by virtue of this Agreement, other provisions of the City Charter, City Code, Miami 21 Code, or any other Federal, State, County, or City Law, Rule, Regulation, governmental approval or governmental denial of any building or development permit or similar decision. Simply acknowledges and agrees that it has no recourse, redress, claim, cause of action, or remedy in law or in equity, in contract or in tort, or otherwise, against the City, its officers, officials, employees and assigns if the City decides that the access provided herein is not in the City's best interests or in the best interests of the general health, safety, welfare, and betterment of the public. 11. HANDLING OF HAZARDOUS MATERIALS: Simply shall, at its sole cost and expense, at all times, and in all respects, comply with all federal, state, and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders related to protection of the environment ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, analysis, generation, storage, disposal or transportation of any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances", under any such laws, ordinances or regulations (collectively "Hazardous Materials"). Simply shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Park or Parking Lot or any other area utilized for the Project required for Simply's use or placement of any Hazardous Materials in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Simply shall, at its sole cost and expense, be responsible for performing any removal, remediation, cleanup or restoration required as a result of its activities on, under or about the Parking Lot or Park. Upon termination or expiration of this Agreement, Simply shall, at its sole cost and expense, cause all Hazardous Materials which are in storage devices placed on, under or about the Parking Lot or Park generally by Simply or its respective employees, officers, agents, contractors or customers or at any such person's directions, to be removed from such property and transported for use, storage or disposal in accordance and Page 3 of 11 compliance with all applicable Hazardous Materials Laws. These requirements shall survive the termination or expiration of this Agreement. 12. SAFETY MEASURES: Simply shall be required to maintain barriers or fences and other safety measures necessary to protect the public from entering any areas that may be dangerous or provide risk of injury. 13. INDEMNIFICATION: Simply shall indemnify, defend and hold harmless the City and its officials, employees (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the negligent performance or non- performance of the Services contemplated by this Agreement (whether active or passive) of Simply or its employees or subcontractors (collectively referred to as "Simply") which is directly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive or in strict liability) of any of them, or (ii) the failure of the Simply to comply materially with any of the requirements herein, or the failure of the Simply to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement even if it is alleged that the City, its officials and/or employees were negligent. Simply expressly agrees to indemnify, defend and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Simply, or any of its subcontractors, as provided above, for which the Simply's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. Simply further agrees to indemnify, defend and hold harmless the Indemnitees from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, related directly to Simply's negligent performance under this Agreement, compliance with which is left by this Agreement to Simply, and (ii) any and all claims, and/or suits for labor and materials furnished by Simply or utilized in the performance of this Agreement or otherwise. This provision shall survive the termination or expiration of this Agreement, as applicable. 14. RELEASE. Upon completion and acceptance of the Project The City agrees: (a) that Simply and its affiliates, officers, directors, subsidiaries, employees, and agents (collectively, the "Released Parties"), are hereby released, to the extent allowed by Florida Statute 768.28 (as it relates to those entities for which such sovereign immunity is applicable), from any and all damages or claims which the undersigned may incur which result, directly or indirectly, from any aspect of the Project; and (b) to the extent allowed by Florida Statute 768.28, not to sue any of the Released Parties (or to file a claim with any of the Released Parties' insurance providers) for any and all claims arising out of, or connected with, the Project, except claims involving injuries or property damage caused by the gross negligence or intentional acts of the Released Parties. Nothing contained in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set for in Chapter 768, Florida Statues. Additionally, the City does not waive Page 4 of 11 sovereign immunity, and no claim or award against the City shall include exemplary or indirect damages, investigative costs or pre judgment interest. If this Agreement becomes the subject of litigation, arbitration, mediation, or other alternative dispute resolution mechanism then each party shall bear their own attorney' s fees, costs, charges, and expenses 15. GOVERNING LAW AND VENUE. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorneys' fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. 16. RESERVE ALL RIGHTS. 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. 17. SEVERABILITY. Should any provision, paragraph, sentence, word or phrase 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 or the City of Miami, such provision, paragraph; sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the 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 or limitation of its use. 18. ENTIRE AGREEMENT. This is the entire agreement between the Parties. It replaces and supersedes any and all oral agreements between the Parties, as well as any prior writings. Modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorized representatives of the Parties. Simply, its contractors, subcontractors, employees, and agents shall be deemed to be independent contractors, and not agents or employees of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further, they shall not be deemed entitled to the Florida Workers' Compensation benefits as employees of the City. 19. PUBLIC RECORDS. Simply understands that the public shall have access, at all reasonable times, to all documents and information pertaining to the City, subject to the provisions of Chapter 119, Florida Statutes, and any specific exemptions there from, and Simply 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. Simply's failure or refusal to comply with the provisions of this Section shall result in immediate termination of the Agreement by the City. Pursuant to the provisions of Chapter 119.0701, Florida Statutes, Simply just comply with the Florida Public Records Laws, specifically Simply must: Page 5of11 (i). Keep and maintain public records that ordinarily and necessarily would be required by the City in order to perform the service/programming. (ii). Provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. (iii). Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (iv). Meet all requirements for retaining public records and transfer, at no cost to the City, all public records in possession of Simply upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. (v). All records stored electronically must be provided to the City in a format compatible with the information technology systems of the City. Simply agrees that any of the obligations in this Section will survive the term, termination, and cancellation hereof. IF SIMPLY HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO SIMPLY'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT AS A PUBLIC CONTRACT, PLEASE CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS AT TELEPHONE NUMBER 305- 416-1800, EMAIL: PUBLICRECORDS@MIAMIGOV.COM, AND MAILING ADDRESS: PUBLIC RECORDS C/O OFFICE OF THE CITY ATTORNEY, 9TH FLOOR, MIAMI RIVERSIDE CENTER, 444 S.W. 2ND AVENUE, MIAMI, FLORIDA 33130 OR THE CITY'S PARKS AND RECREATION DEPARTMENT CUSTODIAN OF RECORDS AT _TH FLOOR, MIAMI RIVERSIDE CENTER, 444 S.W. 2ND AVENUE, MIAMI, FLORIDA 33130. [Signature Page Follows] Page 6 of 11 IN WITNESS WHEREOF, the undersigned has set his hand and seal this day of , 2019. CITY OF MIAMI, a municipal ATTEST: corporation of the State of Florida By: Todd B. Hannon, City Clerk Emilio T. Gonzalez, Ph.D., City Manager Date: APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS CORRECTNESS: Ann -Marie Sharpe, Director, Risk Management Victoria Mendez City Attorney ATTEST: SIMPLY HEALTHCARE PLANS, INC., a Florida corporation By: By: Print Name: Print Name: Title: Title: Date: Date: Exhibit A Resolution No. R-19-****** Exhibit B Renderings and Drawings Exhibit C INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE - DONATION AND INSTALLATION AGREEMENT SIMPLY I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent and 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 Any Auto Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 300,000 B. Endorsements Required City of Miami 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 $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 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or 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 /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval.