Loading...
HomeMy WebLinkAboutExhibitSECOND MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF MIAMI AND FLORIDA DEPARTMENT OF TRANSPORTATION This Second Memorandum of Understanding ("MOU 2" or "Agreement") is entered into on the day of , 2020 ("Effective Date"), by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida ("DEPARTMENT"), and the CITY OF MIAMI, a municipal corporation of the State of Florida ("CITY") (collectively, the DEPARTMENT and the CITY shall be referred to as the "Parties" and individually as "Party"). RECITALS A. The DEPARTMENT has jurisdiction over I-395 and is undertaking a project which includes the development of a bridge over Biscayne Boulevard ("Signature Bridge"), community enhancements located underneath I-395 (the "Underdeck"), and highway capacity improvements that are intended to improve safety and mobility. B. The Parties intend to create an active environment for the Underdeck, consistent with the Parties' intended future agreement on a consensus conceptual plan ("Consensus Plan"), which would represent the agreed -upon conceptual plan for the Underdeck as further defined below. C. The Parties entered into that certain Memorandum of Understanding, dated April 4, 2019 ("MOU 1") to specifically outline their expectations as to their respective roles and responsibilities regarding the design, maintenance and operation of the Underdeck with the DEPARTMENT's consideration of the CITY's design proposals. D. Accordingly, on September 30, 2019, the CITY submitted to the DEPARTMENT a preliminary concept plan for the Underdeck. E. On October 31, 2019, the DEPARTMENT provided the CITY with comments on the CITY's preliminary concept plan, including comments on the various aspects of the future design, maintenance and operation of the Underdeck. F. On April 3, 2020, the CITY provided the DEPARTMENT with a concept plan for the Underdeck, dated March 31, 2020 and representing the CITY's proposed basis of design for the Underdeck, attached hereto as Exhibit A (the "Underdeck Concept Plan"). Page 1 of 10 G. On April 30, 2020, the DEPARTMENT provided a response to the CITY's Underdeck Concept Plan, including various design comments and additional requests for information (the "DEPARTMENT's Additional Requests"), included as Exhibit B. H. On May 14, 2020, the CITY adopted Resolution No. R-20-0146 recommending the vacation of two roadway segments, and Resolution No. R-20-0147 authorizing the City Manager to negotiate and execute a Roadway Transfer Agreement with the DEPARTMENT and approving the Underdeck Concept Plan. L The Parties anticipate entering into subsequent agreements, further described below, which will govern the Parties' respective roles and obligations concerning the Underdeck, including, but not limited to, the design, maintenance, and operation of the Underdeck. J. The Parties mutually agree that the Underdeck may be planned, designed, constructed, and operated in a manner that allows for revenue -generating opportunities in order to fund operations and maintenance of the Underdeck. K. The Parties further agree that the CITY may engage a third party or multiple third parties, whether private or public, to sublease, maintain, and enhance the Underdeck, or portions thereof. L. The Parties intend to work in good faith to develop a Consensus Plan, as defined below, and a framework for the design, maintenance and operation of the Underdeck, in accordance with the terms of this Agreement. M. In furtherance of these goals, the Parties wish to enter into this MOU 2, the primary purpose of which is to address the manner in which the Parties intend to proceed concerning the design, maintenance and operation of the Underdeck. NOW, THEREFORE, the Parties agree as follows: 1. The CITY's and DEPARTMENT's obligations: The Parties intend to collaborate to reach a Consensus Plan based on the CITY's Underdeck Concept Plan and the DEPARTMENT' s Additional Requests, and in coordination with the DEPARTMENT's Design -Build Team, the Consensus Plan shall be finalized on or before September 1, 2020. The CITY may issue a Request for Information ("RFI") to gauge interest from the private market and to request input concerning the CITY's potential sublease of all, or portions of, the Underdeck. Utilizing the information obtained through the RFI, and subject to the review and input Page 2 of 10 from the DEPARTMENT, the CITY may issue a Request for Proposals ("RFP") to select and award a potential sublease to one or more successful proposers ("Proposer"). The CITY's goal is that the Proposer will operate revenue -producing improvements which will offset all, or a significant portion, of the Underdeck operations and maintenance expense. Upon the completion of the CITY's RFP or by July 1st, 2021, whichever occurs first, the parties shall execute, subject to City Commission approval, a Memorandum of Lease Agreement, which the Parties will continue negotiating the terms thereof, outlining the CITY's obligation to lease, maintain and operate the Underdeck by way of a Use and Occupancy Agreement ("Master Lease"). Said Master Lease containing the parties' agreed terms will be submitted to the Federal Highway Administration ("FHWA") for approval. The Master Lease shall also include maintenance and operations commitments, and permissible land uses which shall be subject to approval from the City as the local authority having zoning jurisdiction. The Parties' proposed Master Lease shall, among other things, authorize the CITY to sublease all, or portions of, the Underdeck to third parties. The Parties may negotiate, in a timely manner, such superseding and additional agreements as are necessary to carry out the provisions of this MOU 2. 2. Term. The term of this MOU 2 shall commence on the execution date and shall continue until July 1st, 2021, unless otherwise earlier terminated as provided in this Agreement or extended by the mutual consent of the Parties until such time the Agreement is terminated by either of the Parties or supplanted by future agreement between the Parties (the "Term"). The Parties understand that time is of the essence and, thus, intend to accomplish the goals of this MOU 2 expeditiously. 3. Consensus Plan. The Parties intend to collaborate to reach a Consensus Plan based on the CITY's Underdeck Concept Plan and the DEPARTMENT' s Additional Requests, in coordination with the DEPARTMENT' s Design -Build Team, to be completed on or before September 1, 2020. The Consensus Plan: i. Shall integrate elements of the CITY' s Underdeck Concept Plan with the DEPARTMENT' s plans for the Underdeck, adjacent roadways, and the Signature Bridge project component designs specific to the Underdeck, to the extent the DEPARTMENT reasonably and in good faith deems such Page 3 of 10 integration feasible with the goal of incorporating as much of the CITY' s Underdeck Concept Plan as possible; and ii. Will be designed in a mutually accepted and cost-efficient manner, and shall not include any elements that would increase the cost of the Underdeck development beyond the DEPARTMENT' s approved budget. 4. CITY' s Procurement Process. The CITY, at its sole discretion, may undergo one procurement process to procure a Proposer to enhance and sublease a portion or all of the Underdeck. Prior to the issuance of any procurement solicitations, the DEPARTMENT shall provide the CITY with the DEPARTMENT's commitment to contribute a certain specified amount for the operational costs of the Underdeck, on or before September 1, 2020, ("Maintenance Contribution"). 5. Final Design and Construction of Underdeck. The DEPARTMENT shall be responsible, at its sole cost and expense, for the development of the Signature Bridge and the Underdeck elements (as per the Consensus Plan). The Proposer may propose enhancements to the Underdeck which will be reviewed by the CITY, the DEPARTMENT, and FHWA, and if approved, may be installed at the Proposer' s sole cost. The CITY shall be responsible for the maintenance and operation of the Underdeck, as augmented by the DEPARTMENT's Maintenance Contribution, and as may be subleased in whole or in part to a Proposer, if applicable. The CITY' s commitment to maintain and operate the Underdeck shall be subject to the execution and approval of the various agreements provided below. 6. Execution of Agreements. The Parties shall, subject to City Commission approval, enter into the following agreements: i) A Memorandum of Lease Agreement on or before July 1st, 2021. ii) Memorandum of Sublease Agreement, or similar agreement, which the CITY may enter into with a Proposer, subsequent to the Parties' execution of a Memorandum of Lease Agreement. Any and all subleases entered into between the CITY and any third parties shall be subject to the terms of the finalized and executed Master Lease Agreement, and any other agreements entered into between the DEPARTMENT and CITY regarding the design, construction, operations, and maintenance of the Underdeck. Page 4 of 10 7 Termination of MOU. This Agreement may be terminated unilaterally and at any time by either of the Parties with thirty (30) days' prior written notice. Upon termination by either party, the Parties shall no longer have any obligations to each other under this MOU 2 or otherwise in furtherance of the Underdeck, including, without limitation, that the CITY shall not be obligated to maintain or operate, or provide any funds toward the maintenance or operation of, the Underdeck. Furthermore, in the event that the DEPARTMENT does not proceed with the development of the pedestrian bridge contemplated in the Underdeck Concept Plan, the roadway transfers provided pursuant to Resolution Nos. R-20-0146 and R-20-0147 shall be null and void and shall revert back to the CITY. 8. Point -of -Contact. In connection with the matters addressed in this MOU 2, the FDOT I-395 Bridge Design Project Manager, will serve as designated representative and "point person" for the DEPARTMENT. The Director of the Department of Real Estate and Asset Management, or the City Manager's designee, will serve as the designated representative and "point person" for the CITY. All official communication about material issues related to the development of the Underdeck must flow through the Design Project Manager and the Director of Real Estate and Asset Management, with each of these designated representatives responsible for the further dissemination of information to other members of their respective teams as they deem appropriate. 9. Force Majeure. In the event that either Party hereto is prevented from fully and timely performing any of its obligations hereunder due to acts of God, strikes or lock -outs, other industrial disturbances, acts of the public enemy, laws, rules and regulations of governmental authorities, wars or warlike action (whether actual, impending or expected, and whether de jure or de facto), arrest or other restraint of government (civil or military), blockades, insurrections, acts of terrorists or vandals, riots, epidemics, pandemics, landslides, sinkholes, lightning, hurricanes, storms, floods, washouts, fire or other casualty, condemnation, civil commotion, explosion, breakage or accident to equipment or machinery, any interruption of utilities, confiscation or seizure by any government or public authority, accident, repairs or other matter or condition beyond the reasonable control of either party (collectively called "Force Majeure", financial inability to perform hereby expressly excluded), such party, upon receipt of written notice provided to the other party within ten (10) Page 5 of 10 business days of the occurrence of a Force Majeure event, shall be relieved of the duty to perform such obligation until such time as the Force Majeure has been alleviated; provided, that upon the removal of the Force Majeure, the obligation prevented from being fulfilled will be automatically reinstated without the necessity of any notice whatsoever. 10. Notices. All notices under this MOU 2, including contracts, definitive agreements, etc. shall be in writing and shall be deemed duly given (a) when delivered personally or by prepaid overnight courier, with a record of receipt, (b) the third day after mailing if mailed by certified mail, return receipt requested, (c) the day of transmission, if sent after regular business hours, provided that, in either event, the completed transmission is electronically verified on the day of transmission or the first day thereafter on which receipt can be verified, to the Parties at the following addresses or telecopy numbers (or to such other address or telecopy number as a Party may have specified by notice given to the other Party pursuant to this provision) or (d) when delivered via email, read receipt and delivery receipt requested, to the addresses provided below: To the DEPARTMENT: Florida Department of Transportation District Six Attn: FDOT Design Project Manager 1000 NW 111 AVE Room 6251 Miami, Florida 33172 Email: Auraliz.Benitez@dot.state.fl.us To the CITY: City Manager City of Miami 444 SW 2 AVE 10th Floor Miami, Florida 33130 Email: anoriega@miamigov.com With copies to: Director Department of Real Estate and Asset Management City of Miami 444 SW 2 AVE 3rd Floor Page 6 of 10 Miami, Florida 33130 Email: DRotenberg@miamigov.com City Attorney Office of the City Attorney City of Miami 444 SW 2 AVE 9th Floor Miami, Florida 33130 Email: VMendez@miamigov.com 11. Entire Memorandum. Subject to the provisions of Section 7 above regarding termination, this MOU 2 constitutes the entire agreement between the Parties, and may be amended or modified only in writing of the same formality by this Agreement and, executed by each Party. 12. Due Authorization. The Parties represent and warrant that the signatories below are duly authorized by the Party each represents to enter into this MOU 2 on behalf of said Party, and by their signatures do bind the Party they represent to the terms of this MOU 2. 13. Controlling Law. This MOU 2 is governed by and shall be interpreted and enforced under the laws of the State of Florida. Venue for any actions or suits arising from or related to this MOU 2 shall be in the Circuit Courts of Miami -Dade County, Florida. 14. Severability. If any term or provision of this MOU 2 or the application thereof to any Party shall to any extent be invalid or unenforceable, the remainder of this MOU 2, or the application of such term or provision to the Party other than that as to which it is invalid or unenforceable, shall not be affected thereby. 15. Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Facsimile, .pdf and other electronic signatures to this Agreement shall have the same effect as original signatures. [signatures on following page] Page 7 of 10 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day of , 2020. FOR CITY: ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Todd B. Hannon City Clerk Arthur Noriega V City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: Ann -Marie Sharpe, Director Victoria Mendez Risk Management Department City Attorney FOR DEPARTMENT: FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida By: District Six, Secretary APPROVED AS TO FORM CONTENT AND LEGALITY By: Andrea Gonzalez District Six, Assistant General Counsel Page 8 of 10 Exhibit A CITY' s Underdeck Concept Plan Page 9 of 10 Exhibit B DEPARTMENT' s Additional Requests Page 10 of 10