HomeMy WebLinkAboutExhibit AAMENDED AND RESTATED DEVELOPMENT MANAGEMENT & CONSTRUCTION
AGREEMENT
This Amended and Restated Development Management & Construction Agreement (this
"Agreement") made effective as of , 2023 (the "Effective Date"), by and
between the CITY OF MIAMI, a municipal corporation of the State of Florida (the "City") and
ADLER DEVELOPMENT MANAGER LLC a Florida limited liability company ("Project
Manager"). The City and Project Manager shall be referred to individually as a "Party" and/or
collectively as the "Parties".
RECITALS:
A. The City and Project Manager are parties to that certain Agreement and Lease,
dated November 21, 2019 (the "Lease"), authorized pursuant to City Commission Resolution No.
R-19-0254, and competitively procured by way of Offering Memorandum No. 15-16-008.
B. The City and Project Manager are parties to that certain Development Management
& Construction Agreement, dated November 21, 2019 (the "DMCA"), authorized pursuant to City
Commission Resolution No. R-19-0255, and competitively procured by way of Request for
Proposals No. 15-16-009.
C. The DMCA originally contemplated the construction and development of the City's
new administrative building upon a portion of the property owned by Project Manager located at
230 SW 3rd Street in the City of Miami, Miami -Dade County, Florida (the "Project Manager
Property").
D. Section 4.4 of the DMCA contemplated the relocation of the City's new
administrative building in the event the City's new administrative building could not be developed
upon the Project Manager Property and provided for the good faith negotiation of the Parties to
identify a new site and negotiate a mutually agreeable amendment to the DMCA.
E. The Parties determined that the City's new administrative building cannot be
properly developed upon the Project Manager Property.
F. The Parties have negotiated in good faith and desire to amend the DMCA as
provided in this Agreement in connection with the development of the City's new administrative
building upon a new City -owned site located generally at 1802 NW 37th Avenue, Miami, Florida
33125 (the "City Land"), with such terms as more particularly described in this Agreement.
G. The City Commission authorized the selection of the City Land by Resolution No.
R-22-0218 on June 9, 2022 and thereafter authorized the City Manager to execute and enter into
this Agreement on behalf of the City by Resolution No. R-23-0194 on April 27, 2023.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties, intending to be legally bound, hereby agree as follows:
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Article 1
RECITALS; AGREEMENT
1.1 The foregoing recitals are true and correct and are hereby incorporated as if fully
set forth herein.
1.2
entirety.
This Agreement amends, modifies, supersedes, and replaces the DMCA in its
1.3 This Agreement is not, and shall not be deemed to be, a development agreement
under Sections 163.3220-163.3243 of the Florida Statutes.
Article 2
CITY PROJECT
2.1 City Project. The following improvements shall be constructed on the City Land:
(i) a minimum of approximately three hundred eighty thousand (380,000.00) usable square feet of
office space (using BOMA measurement standards) to serve as the City's new administration
facility ("Office Building"), and (ii) a parking garage containing approximately one thousand fifty
(1,050) parking spaces and fifty (50) on -grade parking spaces for a total of one thousand one
hundred (1,100) parking spaces, and (iii) any other amenities or uses the City may determine as
necessary to serve the Office Building, all in accordance with Approved Plans and Specifications
(as defined herein) reviewed and approved by the City pursuant to this Agreement (collectively,
the above are defined as the "Project Improvements"; the Project Improvements together with
the Land, are defined as the "City Project").
Article 3
DEVELOPMENT MANAGEMENT
3.1 Engagement of Project Manager. In connection with the development of the City
Project, which shall be financed, owned, operated and maintained solely and exclusively by the
City, Project Manager shall have the responsibilities for the development of the City Project as
described in this Agreement.
(a) Attached and incorporated herein as Exhibit "A" is the proposal and
recommendations submitted by Project Manager regarding the City Project's concept,
development strategy, architectural and design schedule guidelines, process and strategy for
obtaining governmental approvals, construction schedule requirements, construction budget
requirements, and other relevant construction and development matters related to the City Project
(collectively "Project Manager Proposal").
(b) Attached and incorporated as Exhibit "B" are the estimated
predevelopment costs for the City Project ("Predevelopment Budget").
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(1) Project Manager shall provide to the City a payment request no more
often than once a month for a disbursement of funds for any costs incurred, or to be incurred,
pursuant to the Predevelopment Budget ("Disbursement Request"). Each Disbursement Request
shall be in the form of AIA G702 Payment Application, or other mutually agreed upon form, and
shall include: (1) a description of predevelopment costs to be funded; (2) invoices; (3) an executed
certification from Project Manager and the applicable contractor that such predevelopment costs
were incurred for the City Project; (4) an executed release from the applicable contractor that all
invoices paid through a prior Disbursement Request have been paid; and (5) any additional
information reasonably required by the City. The City will retain an amount for each General
Contractor request for payment pursuant to the terms negotiated in the Guaranteed Maximum Price
(GMP).
(c) Project Manager shall, on behalf of the City, select and retain all contractors
and consultants for the City Project including: the architect, the general contractor, and civil,
structural, mechanical, electrical, landscape, traffic, and geotechnical engineers (collectively,
"Engineers" and each, an "Engineer"), and the interior designer and other design professionals
(collectively, the "Design Professionals" and each, a "Design Professional"), as appropriate,
subject to the City Manager's prior written approval, which shall not be unreasonably withheld,
conditioned or delayed. The general contractor selected for the Project is herein called the
"General Contractor" and the architect selected for the Project is herein called the "Project
Architect". Each written agreement by and between Project Manager, on the one hand, and the
General Contractor, the Project Architect, an Engineer, or a Design Professional, on the other hand,
shall be referred to as a "City Project Agreement" and collectively, the "City Project
Agreements". The City shall, upon written request by Project Manager, execute an
Acknowledgement and Consent to each City Project Agreement, in a form substantially similar
to that attached and incorporated as Exhibit "D.".
(1) Project Manager shall review the bids with the City Project Representative
(defined below) prior to selection of any contractors or consultants, including without limitation,
the General Contractor and Project Architect, and shall obtain City Manager approval for the final
selection of any contractors or consultants, including without limitation, the General Contractor
and Project Architect. Upon selection of the General Contractor, Project Architect, Engineers, and
other consultants and professionals, the Project Manager shall assemble and negotiate the terms
and conditions of the contracts in consultation and cooperation with the City, and in forms
reasonably acceptable to the City Attorney. Engineers shall be licensed professional engineers as
provided in Chapter 471, Florida Statutes. Project Architect shall be a registered architect as
provided in Chapter 481, Florida Statutes. General Contractor shall be a licensed general contractor
under the laws of the State of Florida. The City may reject the selection of any Engineers,
contractors, or consultants under consideration to be retained on behalf of the City if any such
Engineers, contractors or consultants are not responsible as provided in Section 18-95 of the City
of Miami Code of Ordinances.
(d) Project Manager shall coordinate with the General Contractor, Project
Architect, Engineers, and other consultants and professionals, in order to develop the City Project
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in a cost-effective manner, subject to and in accordance with the Approved Plans and
Specifications as defined and more fully provided for under Section 3.2.
(e) Upon negotiation of the applicable agreements with the General Contractor,
Project Architect, Engineers, Design Professionals, and other consultants and professionals, the
Project Manager (in consultation with the City Project Representative) shall finalize the
construction budget for the City Project (including hard costs and soft costs, financing costs, the
development fees payable to Project Manager hereunder, and cost of furniture, fixture, equipment
and interior design packages to be selected by City to be installed in or upon the City Project) (as
may be adjusted from time to time, the "Combined Development Budget"), a City Project
logistics plan for the City Project staging of construction activities, crews, materials and equipment
("Logistics Plan"), and a development schedule (including any critical path performance dates,
the "Development Schedule") for the design, engineering, construction and completion of the
City Project.
(f) Attached and incorporated as Exhibit "C" is the estimated Combined
Development Budget for the City Project as of the Effective Date (the "Estimated Combined
Development Budget").
(g) The Project Manager shall have no responsibilities or obligations in
connection with obtaining financing to build the City Project. Rather, the City may issue tax-
exempt or taxable special obligation bonds or any other financing mechanism advantageous to the
City (the "Financing") to finance the entirety of the City Project. For the avoidance of doubt, the
Financing may cover any and all costs associated with the design, development and construction
of the City Project.
(h) Project Manager shall provide regular monitoring of design, development,
construction and completion progress and costs for the City Project in consultation and with the
involvement of the City Project Representative, and if and as appropriate, shall assist the City and
advise the City on any action to attempt to avoid, or remediate or mitigate against field conflict(s),
cost overrun(s) and/or delay(s).
(i) Project Manager shall review and submit all payment applications and
invoices for the City Project from the General Contractor, Project Architect, Engineers, and all
other consultants, professionals, contractors, and material suppliers, to the City and/or the City's
Project Representative, and shall work with the City and the City's Project Representative to make
sure the City processes and funds such payments in the ordinary course.
(j) Project Manager shall, in consultation with the City Project Representative,
(i) receive and analyze bids for construction contract, (ii) organize value engineering, and
(iii) advise the City with respect to the selection of the General Contractor. Project Manager shall
provide recommendations and the City shall have the right to review all bids received by Project
Manager in connection with the City Project.
(k) Upon selection of the General Contractor, the Project Manager shall
coordinate with City, the City's Project Representative and applicable consultants in order to
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negotiate the terms and conditions of a Guaranteed Maximum Price General Construction Contract
for the construction of the City Project, in a form acceptable to the City Attorney, which shall
include all labor, materials, equipment and supplies for the construction of the City Project, as well
as General Contractor's overhead expenses and profit (the "GMP Contract"), to be entered into
between the General Contractor and Project Manager for the benefit of the City. The GMP Contract
shall provide for the total cost of the work authorized therein to be capped at the amount to be
approved by the City. Project Manager shall ensure that the GMP Contract provides for the General
Contractor to be responsible for any cost overruns. Excepting those value engineering savings
produced by the design team prior to the establishment of the GMP under the GMP Contract,
which value engineering savings shall inure 100% to the City, the Parties agree that upon
completion of the City Project, any cost savings realized with respect to the final Predevelopment
Budget and the final GMP under the GMP Contract shall be considered cost savings to be shared
50% to the City and 50% to the Project Manager.
(1) Project Manager acknowledges that the City is relying upon Project
Manager's experience and expertise as a developer. Accordingly, Project Manager shall: (a) use
its professional skill and business judgment to make recommendations that further the best
interests of the City; (b) make recommendations to the City regarding ways in which the General
Contractor and any other consultants or subcontractors can perform the work in the most
economical and expeditious manner that is commercially reasonable; (c) assist in identifying an
experienced and qualified General Contractor to construct the City Project; and (d) make
recommendations to the City regarding costs of services and materials provided by the General
Contractor and General Contractor's subcontractors.
(m) Project Manager shall use its best efforts, as may be reviewed and approved
by the City, in negotiating with the General Contractor to incorporate into the GMP terms those
terms set forth on Exhibit "E".
(n) Project Manager shall, in consultation with the City Project Representative,
consult with the General Contractor in connection with its selection of subcontractors and
subcontracts. Project Manager shall (i) analyze subcontractor bids along with General Contractor,
(ii) advise City with respect to the selection of subcontractors and the award of the subcontracts.
(o) Based upon Applications for Payment, including all supporting
documentation, submitted to Project Manager under the City Project Agreements, and thereafter
submitted by Project Manager to the City, the City shall make payments to Project Manager on
account of the contract value of the applicable City Project Agreement. On or before the twenty
fifth (25th) day of the month, Project Manager will submit draft Applications for Payment under
the City Project Agreements to the City (including those required supporting documents). The City
will review and provide revision comments (if necessary) to Project Manager within 10 days. To
facilitate an approved Application for Payment, Project Manager shall make the reasonable
recommended edits and provide the City with a final progress or final fully executed Application
for Payment. The City will make payment to Project Manager within forty-five (45) days of
issuance an approved Application for Payment.
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(p) Project Manager will assist the City in applying for and obtaining, or
causing to be obtained, all approvals necessary for the construction and development of the City
Project, including, without limitation, planning, zoning or rezoning, plat, site plan approval,
licenses, variances and approvals, as necessary, as required by all applicable governmental
agencies, bodies, boards and tribunals, with jurisdiction over the development of the City Land
(collectively, the "Governmental Authorities"), including building permits and all certificates of
occupancy and/or certificates of use, occupational licenses and similar approvals for the
construction, development, operation, use and occupancy of the City Project. Project Manager will
also assist the City in negotiating with the appropriate municipal and public utility bodies for
providing water, sewer and drainage utilities, electric, telephone and telecommunication services
and facilities to the City Project and cause the necessary documentation to effectuate same to be
prepared; which, subject to review by the City Manager and the City Attorney, the City agrees to
execute pursuant to this Agreement, provided that all such agreements are the standard agreements
typically used for such utilities on City -owned properties (including protections typically provided
to the City in relation thereto) and the rates charged for such utilities are consistent with rates
charged for similar development projects.
(q) Project Manager shall make recommendations to the City, General
Contractor, Engineers, the Project Architect, Design Professionals, and other consultants and
professionals regarding the division of work under the Approved Plans and Specifications in order
to facilitate the bidding and awarding of trade contracts, taking into consideration such factors as
time of performance, availability of labor, overlapping trade jurisdictions, provisions for
temporary facilities, and so forth.
(r) Project Manager shall conduct meetings on a regular schedule with the City
Project Representative, General Contractor, the Project Architect, Engineers, Design
Professionals, and other consultants and professionals in order to assist in coordinating the work
to be performed pursuant to the Approved Plans and Specifications and shall give at least fifteen
(15) days' prior notice to City of such schedule. The Parties agree that such meetings shall take
place at least once every two (2) weeks prior to the commencement of construction of the City
Project and thereafter on as -needed basis until completion of the City Project in accordance with
this Agreement. Project Manager shall render to the City a monthly report, which report shall
contain the following information as to the City Project:
(1) the actual progress of work achieved on the City Project during such
month and to date, including the issuance of a monthly updated (a) critical path method schedule
for the City Project, (b) site logistic plan, (c) cash flow projection plan, estimating the flow in and
out of the City Project expenses on a monthly basis or other agreed to by the Parties, and (d)
contract change order log, including any outstanding potential change orders and change order
requests, all of which (a) through (d) will be accounted for in the GMP Contract in consultation
with the City's Project Representative;
(2) the actual expenditures made, during such month and to date, by
category of expenditure and a Construction Budget variance report and Development Schedule
report;
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(3) the estimated cost and time to complete the City Project using
acceptable industry construction cost estimation methods; and
(4) any change orders, Construction Budget changes and/or Logistics
Plan changes for the preceding month.
(s) Without limitation of the foregoing, Project Manager, together with the
Project Architect, shall conduct regular monthly meetings with General Contractor to review with
General Contractor unpaid requisitions and monthly draws, and Project Manager, together with
Project Architect, shall review and process requisitions of payment received from General
Contractor in accordance with the terms of its GMP Contract, for transmittal to the City for
payment of same. The City Project Representative shall be provided prior notice and be permitted
to attend all such meetings.
(t) Project Manager shall monitor the construction of the City Project by the
General Contractor in accordance with the terms of this Agreement and the GMP Contract.
(u) Project Manager shall establish and administer a change order program as
part of the GMP Contract, which shall be subject to review and approval by the City Manager and
shall provide that any changes in the quantity or character of the work, including all changes
resulting in changes in the contract price, or the contract time, shall be authorized only by change
orders approved in advance by the City and issued in accordance with the internal procedures and
legal requirements of the City. Project Manager shall inform the City of all proposed change
orders and shall maintain records thereof. Upon approval of any change order increasing the
contract price, Project Manager shall require that the performance bond and payment bond
provided by the General Contractor are increased so that each reflects the total contract price as
increased. The City reserves the right to order changes which may result in additions to or
reductions from the amount, type or value of the work provided in the GMP Contract and which
are within the general scope of this Agreement.
(v) Project Manager, in consultation with the City's Project Representative,
shall negotiate the closeout of the GMP Contract, including completion of punch -list items,
occupancy certificates, releases of liens and related documents and final payment. All warranties
provided by General Contractor shall run from Completion of the City Project, as defined below.
3.2 Preparation of Plans and Specifications.
(a) Project Manager shall submit to City for review and approval conceptual
plans and specifications (the "Conceptual Plans") for the construction of the City Project. Project
Manager hereby agrees and acknowledges that the Design Development Plans (as defined below)
for the City Project.
(b) The Project Manager shall engage an architect or other appropriate
professional to prepare a detailed plan of the interior space of the City Project which shall be
substantially similar to the "Office Building Plan and Description" set forth in the response by
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Project Manager or its affiliate to the RFP and which describes how space in the City Project will
be allocated amongst the various departments of the City and include such other details as
necessary for the City to confirm that the City Project meets the needs of the City and so the City
may plan how to use the space accordingly (the "Space Plan"). The Space Plan shall be provided
to the City Manager and shall be subject to the City's approval which shall not be unreasonably
withheld or delayed, provided that the Space Plan demonstrates that the space in the City Project
is sufficient for the City's needs, including all ancillary spaces, including, without limitation, a
cafeteria. For the avoidance of doubt, and notwithstanding any language in this Agreement to the
contrary, up to the point at which the Design Development Plans (as defined herein) are finalized,
the City may, in its sole discretion, increase or decrease the size of the City Project, keeping in
mind that such changes may impact the Budgets and/or the Development Schedule.
(c) Project Manager shall direct the Project Architect and Engineers (and other
required professionals and consultants) to prepare the design development plans and specifications
that further define the scope of the City Project based on the Conceptual Plans and the Space Plan
approved by City (collectively, the "Design Development Plans"). The City shall be entitled to a
maximum of forty (40) days, commencing on the date Project Manager and/or the Project Architect
and/or Engineer delivers the Design Development Plans to the City, to review and approve (or
disapprove and provide express reasons for such disapproval) the Design Development Plans for
the City Project.
(d) Upon approval by City of the Design Development Plans for the City
Project, Project Manager shall direct the Project Architect and Engineers (and other required
professionals and consultants) to prepare and to submit to the City for approval, final permit and
construction plans and specifications for the City Project that further define the scope depicted in
the Design Development Plans (the "Construction Drawings"). The City shall be entitled to a
maximum of forty (40) days, commencing on the date Project Manager and/or the Project Architect
and/or Engineer delivers the Construction Drawings to the City, to review and approve (or
disapprove and provide express reasons for such disapproval) the Construction Drawings for the
City Project. The final Construction Drawings as approved by City (as the same from time to time
may be modified or amended and approved by City), are termed the "Approved Plans and
Specifications".
For clarity, nothing in this Agreement shall be deemed an express or implied representation,
covenant or warranty by Project Manager with respect to merchantability or fitness for a particular
purpose of any of the Conceptual Plans, the Design Development Plans or the Approved Plans and
Specifications for the City Project (or any other particular design, architectural or engineering
document) or their respective compliance with applicable laws, codes, regulations or ordinances.
For the avoidance of doubt, any plans, drawings, or specifications for the City Project previously
provided to the City for approval prior to the Effective Date shall not be deemed to satisfy the
obligations set forth in this Section 3.2, or to otherwise trigger any timelines or deadlines provided
herein.
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3.3 Overall Standard of Care. Project Manager shall perform the services under this
Agreement substantially in accordance with the standards of care, skill, prudence and diligence
that an experienced professional developer of projects in South Florida similar to the City Project
would be expected to use and exercise in the conduct of such development, and the responsibility
of Project Manager in performing the services hereunder shall be measured in each case against
the standards of performance described in this Section or otherwise in this Agreement. In carrying
out its duties and obligations, Project Manager shall not be responsible for matters beyond its
reasonable control (including the City's failure or delay to authorize or permit Project Manager to
take any actions or make any expenditures required to meet these standards). Except as expressly
authorized under this Agreement, or unless otherwise approved by City, Project Manager shall
deal at "arms -length" with all third parties and shall not make any payment to or enter into any
arrangement with respect to the City Project with any affiliated or related party of Project Manager,
without the prior written disclosure to, and prior written consent of, the City, which consent shall
not be unreasonably withheld, conditioned or delayed.
3.4 Limitation on Scope of Services and Responsibilities. The General Contractor,
Project Architect, Engineers, and other third -party consultants and professionals hired through
Project Manager for the City Project shall be responsible to Project Manager for providing (i)
professional services and advice regarding construction design, means, methods, sequences and
techniques, (ii) other services that are appropriately performed by a licensed general contractor,
architect, engineer or other design professional, and (iii) legal services and/or other professional
services necessary for the design, development and/or completion of the City Project.
Notwithstanding the above, or any language to the contrary contained in this Agreement, Project
Manager shall, with reasonable promptness, notify the City should Project Manager receive actual,
constructive, or implied notice of any acts or omissions by General Contractor, Project Architect,
Engineers, and other third -party consultants and professionals that would result in Liabilities to
the City. Project Manager's intentional or grossly negligent failure to notify the City shall be a
Project Manager Default, which shall neither require notice by the City nor provide Project
Manager the ability to cure. Further, except as expressly provided in this Agreement, Project
Manager has no obligation to perform any services to, or for the benefit of, any person other than
City, including, but not limited to, any party or parties related to the issuance of the Financing nor
any other affiliate of the City, nor any other person or entity that may have or acquire an interest
in the City Project.
3.5 City's Responsibilities. The City hereby covenants that:
(a) The City shall promptly provide full information regarding the City's
requirements for the City Project.
(b) The City shall furnish Project Manager with all reports, plans, documents
and information reasonably available to the City and required for the performance by Project
Manager of the scope of its services and responsibilities under this Agreement in the City's
possession or of which the City has knowledge (and not in possession or knowledge of Project
Manager).
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(c) For purposes of this Agreement, any approval by the City shall mean the
approval by the City Manager (or his or her designee) unless such approval requirement is
regulatory in nature or otherwise is reasonably determined by the City Attorney to require City
Commission approval. If, within twenty (20) business days after City Manager's receipt of any
written request from Project Manager for any approval or consent that is neither regulatory nor
requires City Commission approval under this Agreement (except only for the approval of Design
Development Plans and/or Construction Drawings, for which the City shall have forty (40) days),
the City does not approve or disapprove such item (disapproval to include reasons), then Project
Manager shall provide written notice to the City and the City Project Representative and the City
shall have an additional Ten (10) day period to respond. If the City fails to timely respond within
such additional period, then the Project Manager shall utilize the expedited review and approval
process.
(d) The City will appoint the Director of DREAM or the City Manager's
designee (including any successors or substitutions of any of the foregoing) as the City's
representative for the Project (the "City Project Representative"). The City shall cause either the
City Project Representative to remain generally available to perform the City's duties and
obligations under this Agreement and be involved throughout the term of this Agreement on behalf
of the City to the extent reasonably necessary for the City to perform its obligations under this
Agreement, including without limitation, the City providing feedback and approval, as warranted,
with respect to certain development and construction maters hereunder.
(e) The City shall, at all times, cooperate with Project Manager in connection
with the construction of the City Project (including, without limitation, attending such meetings as
are necessary, and signing documents, applications, instruments and agreements in furtherance of
completing the City Project) and, upon the written request of Project Manager, from time to time,
also shall coordinate with Project Manager any interaction with private and public sector entities
that may have standing with respect to the City Project and those having approval or regulatory
authority regarding the Project.
(f) Subject to review by the City Manager and the City Attorney (which review
shall not be unreasonably withheld, conditioned or delayed), and further subject to any approvals
by the City Commission that the City Attorney may reasonably determine are required, the City
agrees to execute acknowledgements and/or customary consents to all agreements, contracts and
documentation negotiated between Project Manager and General Contractor, Project Architect,
Engineers, and other consultants and professionals for the City Project.
(g) Notwithstanding any language contained in this Agreement to the contrary,
this Agreement shall not impose any obligation upon the City in its regulatory capacity. The City
retains all of its sovereign prerogatives and rights as a municipality, acting in its governmental
capacity, under all applicable laws, including, but not limited to, matters pertaining to the
regulation of planning, design, construction, development and operation of the City Project.
Article 4
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DEVELOPMENT MANAGEMENT FEE
4.1 Development Management Fee. In consideration of the services to be performed
by Project Manager under this Agreement, Project Manager shall be entitled to a Development Fee
equal in the aggregate to five percent (5%) of the final Combined Development Budget (the
"Development Fee").
(a) The Development Fee shall be payable as follows: (1) two and a half of one
percent (2.5%) of the entire Development Fee shall be due and paid to the Project Manager on a
monthly basis, in equal monthly installments, from the Effective Date until commencement of
construction of the City Project, as evidenced by the issuance of a vertical building permit; (2)
ninety-two and a half of one percent (92.5%) of the entire Development Fee shall be due and paid
on a monthly basis, in equal monthly installments, during construction of the City Project up and
until issuance of a temporary certificate of occupancy for the City Project; and (3) the remaining
unpaid portion (i.e. five percent (5%)) of the total Development Fee shall be due and paid to Project
Manager upon the issuance of a final Certificate of Occupancy (the "CO") for the City Project.
(b) Recognizing that the Combined Development Budget will evolve and be
adjusted throughout the development and construction of the City Project, for purposes of
calculating the payment of the Development Fee due to Project Manager under this Section 4.1,
the Parties shall use the Estimated Combined Development Budget, and shall reconcile the
Estimated Combined Development Budget against the actual Combined Development Budget
upon reaching the following milestones: (i) commencement of construction of the City Project, as
evidenced by issuance of a vertical building permit for the City Project, and (ii) issuance of a CO
for the City Project. To the extent of any shortfall of the Development Fee paid to Project Manager
at either such milestone, the City shall, in the subsequent payment to Project Manager, adjust such
payment so as to compensate Project Manager for any such shortfall.
4.2 Relationship. The payment of the Development Fee or any other fees paid to
Project Manager pursuant to this Agreement shall neither create any express or implied obligation,
liability, or duty by Project Manager to the City, or any affiliate, principal, agent, or employee of
the City, except as expressly set forth in this Agreement, nor create any express or implied
obligation, liability, or duty by the City, or to the Project Manager or any affiliate, principal, agent,
or employee of City, except as expressly set forth in this Agreement.
Article 5
AGREEMENT TERM & CITY FINANCING OBLIGATIONS, TIMING
5.1 Term. This Agreement shall continue from the Effective Date until completion of
the City Project, unless otherwise earlier terminated pursuant to, and in accordance with, the terms
hereof. For all purposes of this Agreement, the term "Completion of the City Project" shall mean
the last to occur of the date (a) the Project Architect issues a certificate stating that the City Project
has been substantially completed in accordance with the Approved Plans and Specifications (and
any and all approved change orders from time to time), and (b) the issuance by the General
Contractor of a final lien release and the payment of final retainage under the GMP Contract and
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the performance of final punch -list items, and (c) the issuance of a CO for the City Project, and (d)
the completion of all material punch -list items which would otherwise unreasonably interfere with
the City's ability to safely and lawfully occupy and operate the City Project in the ordinary course
of business.
5.2 City to Obtain Financing. The Project Manager acknowledges and agrees that the
City intends the financing undertaken with respect to the City Project will be tax-exempt financing,
which requires compliance with federal tax laws which relate to, among other things, the
ownership and use of the facilities financed by tax-exempt financing. The Project Manager agrees
and covenants (1) to cooperate with the City to structure the ownership and use of the City Project
to facilitate and enable the use of tax-exempt financing for the City Project and further agrees not
to unreasonably withhold consent to any action by the City deemed necessary by the City's Bond
Counsel in order to comply with federal tax laws regarding such financing, and (2) if necessary
for such compliance, to work with the City in good faith to amend this Agreement.
5.3 Total Costs. Project Manager acknowledges that the City intends for the total cost
to be incurred by the City for the City Project to be limited to those costs which are approved by
City Commission at the time the City Commission approves the total financing for the City Project
(the "Maximum Budget"), unless and until the City Manager obtains authority to incur such
additional costs by resolution of the Miami City Commission. Project Manager shall use its best,
commercially reasonable efforts to perform the services hereunder such that the total costs incurred
by the City for the City Project do not exceed the Maximum Budget.
Article 6
TERMINATION; INDEMNITIES.
6.1 Termination of Project Manager.
(a) Notwithstanding the term of this Agreement as established under Section
5.1 hereof, the engagement and services of Project Manager under this Agreement may be
terminated at any time in the good faith sole discretion of the City effective upon written notice
given by City upon the occurrence of any of the following:
(1) Subject to Force Majeure Events, and delays caused solely by the
City, including its agencies, instrumentalities, departments and officials, the failure to commence
construction of the City Project by the later of: (a) thirty-six (36) months after the Effective Date
or (b) within One Hundred Fifty (150) days after the City closes on the Financing.
(2) The dissolution of Project Manager or the sale, assignment, pledge
or conveyance of this Agreement not previously approved by the City in its sole discretion, or the
placement of the Project Manager, its principals or affiliates on the convicted vendors list, or if
they are convicted of any crime involving moral turpitude;
(3) (i) any receiver, trustee or custodian shall be appointed for all or any
substantial part of the property or assets of Project Manager; (ii) Project Manager shall commence
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any voluntary proceeding under present or future federal bankruptcy laws or under any other
bankruptcy, insolvency or other laws respecting debtor's rights; or (iii) an "order for relief' or
other judgment or decree by any court of competent jurisdiction is entered against Project Manager
in any involuntary proceeding against Project Manager under present or future federal bankruptcy
laws or under any other bankruptcy, insolvency or other laws respecting debtor's rights, or any
such involuntary proceeding shall be commenced against Project Manager and shall continue for
a period of Ninety (90) days after commencement without dismissal; or
(4) A Project Manager Default.
6.2 Project Manager Indemnity Undertaking. The Project Manager agrees, and shall
cause General Contractor to agree, to indemnify, defend (at its own cost and expense by defense
counsel reasonably acceptable to the City Attorney) and hold harmless each City Indemnitee (as
defined herein) from and against any and all Liabilities to the extent incurred by such City
Indemnitee by reason of, or in connection with, any Project Manager Default under this
Agreement. This indemnification provision shall obligate the Project Manager to investigate,
adjust, and respond (at its own expense) to any such claims, actions, demands and through
investigatory, administrative, appellate, supplemental or bankruptcy proceedings, and to any and
all claims of liability and all suits and actions of every name and description covered by this
Section, which may be brought against the City whether performed by Project Manager or persons
employed or utilized or subcontracted by the Project Manager. Notwithstanding the foregoing,
Project Manager's obligation to indemnify, defend and hold City harmless hereunder shall not
extend to the extent such any such Liabilities are caused by the willful misconduct or gross
negligence of the City or any City Indemnitee. If this Agreement is cancelled or terminated prior
to Completion of the City Project, then this indemnification shall survive for twelve (12) months
from the date of such cancellation or termination; otherwise, this indemnification shall survive for
twenty-four (24) months after the date of Completion of the City Project. For purposes of this
Agreement, the following terms have the following meanings:
(a) "City Indemnitee" means each of the City and its officers, directors,
employees, and successors and assigns, jointly and severally, as well as any City agency or
instrumentality which performs any official function under this Agreement;
(b) "Liabilities" means any and all, liabilities, indebtedness, obligations,
expenses, claims, demands, actions, causes of action, suits, damages, costs, penalties, decrees,
deficiencies, guarantees or endorsements of any type, whether accrued, absolute, contingent,
matured, unmatured or otherwise (including costs and reasonable attorneys' fees and
disbursements), and whether or not arising out of third -party claims. Notwithstanding the
foregoing, except in the event of the theft, fraud or other dishonesty of the Project Manager (to the
extent such action otherwise constitutes a Project Manager Default under item (1) of Section 6.2(C)
hereof after giving effect to the last sentence thereof), the term "Liabilities" shall include punitive
or exemplary damages; and
(c) "Project Manager Default" means with respect to the performance of its
duties under this Agreement or otherwise in connection with the City or the City Project: (1) the
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theft, fraud or other dishonesty of Project Manager; or (2) the gross negligence or willful
misconduct of Project Manager. For clarity, a Project Manager Default shall expressly exclude (i)
any act or omission solely of City, or (ii) the breach of contract, negligence, dishonesty or bad faith
of any agent or consultant selected, engaged or retained by the Project Manager.
6.3 Non -Responsibility for Acts, Omissions, and Legal Actions of Others
(a) The City acknowledges and agrees that the Project Manager shall not be
held responsible or liable for any acts, omissions, claims, losses, damages, costs, or expenses
arising from the work performed by third -party contractors, subcontractors, and any entities or
individuals not directly employed by the Project Manager on the Project. .
6.4 City Default; Termination; Indemnity Undertaking.
(a) Subject to the limitations set forth in Section 3.5(g) and elsewhere in this
Agreement, the City shall be in "Default" under this Agreement if City fails to perform or observe
any express proprietary duty, obligation or agreement of the City under this Agreement in any
material respect, and fails to cure such failure within thirty (30) days of written notice thereof from
Project Manager, provided, however, that, if such failure is not reasonably capable of being cured
within such thirty (30) day period, and if City shall initiate diligent efforts to cure such failure
within such thirty (30) day period, and thereafter diligently shall pursue such cure, then such cure
period shall be extended for such period of time as is reasonably necessary under the attendant
facts and circumstances to cure such failure, such extension not to exceed, however, ninety (90)
days in the aggregate or any lesser period required by any Governmental Agency or instrumentality
to effect such cure. Upon the occurrence of a Default by City, Project Manager shall have the right
to terminate this Agreement upon written notice of termination given by Project Manager.
(b) Without limitation of Section 6.4(a), Project Manager may terminate this
Agreement at any time, in the sole discretion of Project Manager, effective upon written notice
given by Project Manager in the event: (i) any receiver, trustee or custodian shall be appointed for
all or any substantial part (i.e. more than 50%) of the property or assets of the City; (ii) the City
shall commence any voluntary proceeding under present or future federal bankruptcy laws or under
any other bankruptcy, insolvency or other laws respecting debtor's rights; or (iii) an "order for
relief" or other judgment or decree by any court of competent jurisdiction is entered against the
City in any involuntary proceeding against the City under present or future federal bankruptcy
laws or under any other bankruptcy, insolvency or other laws respecting debtor's rights, or any
such involuntary proceeding shall be commenced against the City and shall continue for a period
of Ninety (90) days after commencement without dismissal.
Remedy Upon Termination. Unless otherwise due to a Project Manager Default, upon any
termination without cause of this Agreement or the engagement and services of Project Manager,
in addition to all other rights and remedies available to Project Manager at law or in equity, Project
Manager shall have the right to assert a claim for, and recover, and the City shall pay Project
Manager, (i) any then unpaid and earned Development Fee (pro -rated for any partial month), and
(ii) all reimbursements earned or incurred through the date of such termination, if any (although
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the Development Fee shall otherwise terminate effective as of any termination hereunder), and
(iii]) all losses, costs, expenses and/or damages (but excluding attorneys' fees) incurred by Project
Manager as a result of a Default or termination, under Section 6.4(a) or (b) hereof. In the event of
a termination for City convenience, the City agrees to pay the Project Manager a termination fee
("Termination Fee") as compensation for costs incurred and anticipated profits lost due to the
termination of the Agreement. The Termination Fee shall be equal to the sum of $150,000 (One
Hundred Fifty Thousand U.S. Dollars). The Termination Fee shall be paid to the Project Manager
within thirty (30) days of the effective date of termination for City convenience.
(c) Upon any termination of this Agreement, in addition to all other rights and
remedies available to City at law or in equity, City shall have the right to dispute the requested
payment of any unpaid Development Fee or request for reimbursement that was not authorized or
otherwise improperly requested.
6.5 Relocation of City Project. In the event that the City and the Project Manager
mutually agree that the City Project cannot be developed in substantially the same form as the
current design contemplates on the Land (either due to a Force Majeure Event or otherwise) the
Project Manager and City shall work together in good faith to (i) identify a new site upon which
the City Project shall be developed, subject to all applicable City of Miami and other regulatory
approvals, and (ii) negotiate a mutually agreeable amendment to this Agreement. Such an
amendment to this Agreement shall, among other things, provide for such additional time as is
necessary for the completion of the City Project upon the new site. In the event the City and
Project Manager cannot (i) mutually agree upon a new site for the City Project and/or an
amendment to this Agreement within thirty-six (36) months after the date upon which it was
determined by the parties, in writing, that City Project cannot be built upon the Land, the City and
the Project Manager shall have the right to terminate this Agreement. For the avoidance of doubt,
the City shall not have the right to terminate this Agreement under any circumstances, once
development of the City Project on the Land has commenced.
6.6 Termination Obligations. Upon the expiration or earlier termination of this
Agreement, Project Manger shall:
(a) Provide a final accounting to City;
(b) Deliver to or as designated by City all materials, supplies, equipment, keys,
contracts and documents, all books of account, all records, all permits and approvals, plans and
specifications, and other personal property (tangible and intangible) maintained or in the
possession or control of Project Manager under this Agreement and/or pertaining to the City
Project (copies of which may be made and retained by Project Manager at the Project Manager's
sole cost and expense);
(c) Assign any contract rights regarding the City Project, and the City shall
accept such contract rights regarding the City Project; and
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(d) Furnish all such information, take all such other action, and cooperate with
City as City shall reasonably request in order to complete the orderly termination and transfer of
Project Manager's services, duties, obligations and activities on the City Project.
Article 7
INSURANCE; LIMITATION OF LIABILITY
7.1 Insurance to Be Maintained by Project Manager. Project Manager shall, at its sole
cost and expense, purchase and maintain insurance of the type and extent as set forth on Exhibit
"F" attached hereto. All such insurance maintained by Project Manager in connection with the
City Project shall name City as an additional insured and shall be primary as against any policies
maintained by City but shall be excess and non-contributing as against any policies maintained by
General Contractor or its subcontractors. Upon written instruction from the City specifying any
other entities to be included as an additional insured, Project Manager shall add such entities as
additional insureds as provided herein.
7.2 Construction Insurance of General Contractor. Project Manager shall instruct
General Contractor to obtain, prior to commencement of any work, and at its sole cost and expense,
and thereafter at all times during the performance of the construction contract with General
Contractor until completion of the City Project (or such longer period as specified in the GMP
Contract), maintain the insurance required to be maintained by General Contractor as set forth on
Exhibit "F" attached hereto.
7.3 Construction Insurance of Subcontractors. Project Manager shall instruct General
Contractor to have each subcontractor and sub -subcontractor of General Contractor obtain, and
thereafter at all times during the performance of this Agreement, maintain, at each subcontractor's
and sub -subcontractor's sole cost and expense, the insurance required to be maintained as set forth
on Exhibit "G" attached hereto. Project Manager shall instruct General Contractor to monitor
each subcontractor's and sub -subcontractor's insurance to require each subcontractor and sub -
subcontractor to maintain such insurance until completion of the City Project.
7.4 Payment and Performance Bond. The Project Manager shall cause the General
Contractor to obtain and maintain, in full force and effect, before commencement of any work and
throughout the term of this Agreement, a payment and performance bond for the full construction
of the City Project consistent with the requirements and regulations contained in Section 255.05
of Florida Statutes and in a form acceptable to the City Attorney and the City's Risk Management
Department . The payment and performance bond shall be recorded in the Public Records of
Miami -Dade County, Florida, and evidence of such recording shall be furnished to the City's
Director of Real Estate and Asset Management prior to the commencement of any work. The City
shall be named as a dual obligee on any such bonds with respect to the City Project. The bonds
shall be issued by a surety licensed to do business in the State of Florida and rated A- or better per
A.M. Bests Key Rating Guide, latest edition.
7.5 Cooperation. City and Project Manager shall cooperate with the other Party and
with General Contractor in connection with the processing of claims and the collection of any
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insurance proceeds that may be payable in the event of loss or claim under any of the policies of
insurance maintained by each and execute and deliver to the insurers such proofs of loss and other
documents as may be required for the recovery of the proceeds of any such insurance.
7.6 Insurance Schedule. City and Project Manager acknowledge that the insurance
coverage held by General Contractor and all subcontractors must be approved by City.
7.7 City's Sovereign Immunity. Notwithstanding anything to the contrary contained in
this Agreement or in any exhibits attached hereto, it is expressly understood and agreed by and
between the Parties that the City does not waive its sovereign immunity and that City's liability is
subject to and in accordance with the limitations of Section 768.28, Florida Statutes.
Article 8
NHSCELLANEOUS
8.1 Estoppel Certificate. Each Party shall, from time to time, within thirty (30) days
after receipt of written request from the other Party, or the other Party's lender(s), execute and
deliver to the requesting Party a written estoppel certificate, in the form attached as Exhibit "H"
hereto, containing the reasonably requested information, including, without limitation, a
certification that this Agreement is in full force and effect.
8.2 No Third Party Beneficiaries. The rights granted under this Agreement shall be
solely for the benefit of City and each person comprising the City Indemnitee, and Project Manager
and no other third party shall have any claim to any such right or benefit thereof. It is further
understood and agreed that Project Manager shall in no event be deemed to have any privity of
contract, either express or implied, with any other party besides City with respect to Project
Manager's rights and responsibilities set forth in this Agreement.
8.3 Notices.
(a) Any and all notices, demands, consents, approvals, offers, elections and
other communications required or permitted under this Agreement (collectively, "Notices") shall
be deemed given if in writing and the same shall be given by a nationally recognized overnight
delivery service, freight prepaid.
(b) All Notices required or permitted to be sent hereunder shall be deemed to
have been given for all purposes of this Agreement (i) if delivered by hand upon the date of receipt
or refusal, except that whenever under this Agreement a Notice is either received on a day which
is not a business day or is required to be delivered on or before a specific day which is not a
business day, the day of receipt or required delivery shall automatically be extended to the next
business day, (ii) if delivered or sent by registered or certified mail, upon the earlier of the
expiration of three (3) days after deposit in United States post office facilities properly addressed
with postage prepaid or acknowledgment of receipt or (iii) if delivered via overnight courier, on
the next business day after deposit with an overnight courier.
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(c) All such Notices shall be addressed:
If to City, to:
City Manager
City of Miami
444 SW 2"d Avenue, 10th Floor
Miami, Florida 33130
With copies to:
Director of Real Estate Asset Management
City of Miami
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
City Attorney
City of Miami
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
If to Project Manager, to:
David Adler
ADLER DEVELOPMENT MANAGER LLC3800 NE 1 Avenue
Suite 300
Miami FL, 33137
With copies to:
Nancy Lash, Esquire and Ryan Bailine, Esquire
Greenberg Traurig, P.A.
333 SE 2"d Avenue, Suite 4400
Miami, FL 33131
(d) By Notice given as herein provided, the Parties hereto and their respective
successors and assigns shall have the right from time to time and at any time during the term of
this Agreement to change their respective addresses effective upon receipt by the other parties of
such Notice and each shall have the right to specify as its address any other address within the
United States of America.
8.4 Headings. The headings in this Agreement are for convenience only and shall not
be considered or referred to in resolving questions of interpretation or construction.
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8.5 Pronouns. All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person, persons, party or
parties may require.
8.6 Severability. If any clause or provision of this Agreement is illegal, invalid or
unenforceable under present or future laws effective during the term hereof, then such clause shall
be deemed to be deleted therefrom, and the remainder of this Agreement shall not be affected
thereby, and shall remain in full force and effect.
8.7 Assignment. The rights of the Parties under this Agreement are personal to the
Parties and may not be assigned without the prior written consent of the City. Any purported
assignment in violation of the foregoing prohibition shall be void. This Agreement shall be
binding upon and enforceable against, and shall inure to the benefit of, the Parties hereto and their
respective legal representatives, successors and permitted assigns.
8.8 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit
of the Parties hereto and their respective successors, heirs and assigns.
8.9 Governing Law; Venue; Attorneys' Fees. This Agreement is made pursuant to all
of the rights and obligations of the Parties hereto and all of the terms and conditions hereof shall
be construed in accordance with and governed by the laws of the State of Florida without giving
effect to conflicts of laws principles. Venue lies solely in Miami -Dade County, Florida. In the
event of any litigation or other legal proceeding between the Parties arising under this Agreement,
each Party shall be responsible for their respective attorneys' fees and costs.
8.10 Waiver. No consent or waiver, express or implied, by either Party to or of any
breach or default by the other Party in the performance of this Agreement shall be construed as a
consent or waiver to or of any subsequent breach or default in the performance by such other Party
of the same or any other obligation hereunder.
8.11 Time of Essence. Time is of the essence of this Agreement.
8.12 Trade Names. All trade names used in connection with the City Land shall be and
remain the sole property of the City, and Project Manager shall have no right to use such trade
names. The City shall have the sole and absolute naming and/or branding rights with respect to the
City Project, and Project Manager shall have none.
8.13 No Partnership or Joint Venture. Nothing contained in this Agreement shall
constitute or be construed to be or create a partnership or joint venture between City and Project
Manager.
8.14 Amendments. This Agreement may not be modified, altered or amended except
pursuant to a written instrument executed by City and Project Manager.
8.15 Agreement Not an Interest in Real Property. This Agreement shall not be deemed
at any time to be an interest in real estate or a lien of any nature against the City Land.
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8.16 Counterparts; Electronic Signatures. This Agreement may be executed in
counterparts and all counterparts, and electronically or by other digital means, each of which shall
constitute an original but all of which, when taken together, shall constitute one and the same
agreement. The parties shall be entitled to sign and transmit an electronic signature of this
Agreement (whether by facsimile, PDF or other email transmission), which signature shall be
binding on the party whose name is contained therein. Any party providing an electronic signature
agrees to promptly execute and deliver to the other parties an original signed Agreement upon
request..
8.17 Days. Unless specifically called out in this Agreement to the contrary, all
references to "days" shall refer to calendar days. If a date referenced in this Agreement falls on a
Saturday, Sunday or federal holiday, it shall be deemed to fall on the next business day.
8.18 Non -Discrimination. In the performance of its obligations under this Agreement,
Project Manager shall comply with the provisions of any federal, state or local law prohibiting
discrimination in housing on the grounds of race, color, sex, creed or national origin, including,
without limitation, (i) Title VI of the Civil Rights Act of 1964 (Public Law 88-362, 78 Stat. 241),
and all requirements imposed by or pursuant to HUD regulations (24 C.F.R., Subtitle A, Part 1)
issued pursuant thereto, (ii) regulations issued pursuant to Executive Order 11063 and (iii) Title
VIII of the 1968 Civil Rights Act.
8.19 Jury Trial Waiver. TO THE FULLEST EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES
HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT, POWER, REMEDY OR
DEFENSE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CITY
PROJECT, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR
WITH RESPECT TO ANY COURSE OR CONDUCT, COURSE OR DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY
RELATING TO THIS AGREEMENT; AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY.
EACH OF THE PARTIES HERETO FURTHER WAIVES ANY RIGHT TO SEEK TO
CONSOLIDATE ANY SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT OR
HAS NOT BEEN WAIVED. FURTHER, EACH OF THE PARTIES HERETO HEREBY
CERTIFIES THAT NONE OF ITS REPRESENTATIVES, AGENTS OR ATTORNEYS
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION. EACH OF THE PARTIES HERETO ACKNOWLEDGES
THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO
THE ACCEPTANCE OF THIS AGREEMENT BY THE OTHER PARTY HERETO.
8.20 Drug Free Workplace. Project Manager shall at all times comply with, and shall
use its good faith efforts to cause its employees to at all times comply with, the Federal Drug Free
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Workplace Act of 1988 or any regulations promulgated thereunder, including, without limitation,
the regulations at 24 C.F.R. Part 24 (April 1, 1992).
8.21 Force Majeure. To the extent that the performance by either Party of any obligation
under this Agreement is actually prevented, delayed, retarded or hindered by a "Force Majeure
Event" (as hereinafter defined), and such Party promptly notifies the other Party of the existence
of such Force Majeure Event and identifies the same to the other Party as a Force Majeure Event,
then such Parry's performance of such obligation shall be deferred by the lesser of (i) the period
of time in which performance is so prevented, delayed, retarded or hindered, or (ii) twelve (12)
months. "Force Majeure Event" refers to and includes any act of God or nature, an act of
terrorism or war, suspension of government operations, extraordinary closure of government
offices, general moratoria on development of the City Project and other properties in the vicinity
of the City Project, strikes, civil disturbance, labor troubles, labor or materials shortage, or any
other cause that is not within the reasonable control of Project Manager or City, specifically
excluding delays due to shortage or unavailability of funds or financial condition.
8.22 E-Verify Compliance. In compliance with Section 448.095, Fla. Stat., Project
Manager shall require that General Contractor and its respective subcontractors register with and
use the E-Verify system to verify work authorization status of all employees hired after January 1,
2021.
(a) All Parties contracted to complete the Project, including the Project
Manager and General Contractor (and that General Contractor require its subcontractors) shall
provide the City with an affidavit stating that Project Manager, General Contractor, and its
subcontractors, do not employ, contract with, or subcontract with an unauthorized alien. Project
Manager shall maintain a copy of all affidavits as part of and pursuant to the records retention
requirements of this Agreement.
(b) The City, Project Manager, or any contractor or subcontractor who has a
good faith belief that a person or entity with which it is contracting has knowingly violated Section
448.09(1), Fla. Stat. or the provisions of this section shall terminate the contract with the person
or entity.
(c) The City, upon good faith belief that project manager, contractor or
subcontractor knowingly violated the provisions of this section, but Project Manager otherwise
complied, shall promptly notify Project Manager and Project Manager shall immediately terminate
the contract with the contractor or subcontractor.
(d) Any contract termination under the provisions of this section may be
challenged pursuant to Section 448.095(2)(d), Fla. Stat. Project Manager acknowledges that upon
termination of this Agreement by the City for a violation of this section by Project Manager,
Project Manager may not be awarded a public contract for at least one (1) year. Project Manager
further acknowledges that Project Manager is liable for any additional costs incurred by the City
as a result of termination of any contract for a violation of this section.
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(e) Project Manager, contractor and/or subcontractor shall insert in any
contracts the clauses set forth in this section, including this subsection, requiring the contractor or
subcontractors to include these clauses in any lower tier subcontracts.
8.23 Confidentiality and Publicity
(a) Pursuant to the provisions of Section 119.0701, Florida Statutes, Project
Manager will use its best efforts to comply with the Florida Public Records Laws; specifically,
Project Manager shall use its best efforts to comply with the following:
(i) Keep and maintain public records that ordinarily and necessarily
would be required by the City to perform the service.
(ii) Upon request from the City's custodian of public records, provide
the City with a copy of the requested records or allow the records to be inspected or copied within
a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise
provided by law.
(iii) that public records that are exempt or confidential and exempt from
public records disclosure requirements not be disclosed except as authorized by law for the
duration of the contract term and following completion of the contract if Project Manager does not
transfer the records to the public agency.
(iv) Upon completion of the Agreement, transfer, at no cost to the public
agency, all public records in possession of Project Manager or keep and maintain public records
required by the City to perform the service. If Project Manager transfers all public records to the
City upon completion of the Agreement, Project Manager shall destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure requirements.
If Project Manager keeps and maintains public records upon completion of the Agreement, Project
Manager shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the City's custodian of public
records, in a format that is compatible with the information technology systems of the City.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT (305)416-1883, PUBLICRECORDS@MIAMIGOV.COM, 444
SW 2ND AVE, 9TH FLOOR, MIAMI, FLORIDA 33130.
(b) Project Manager acknowledges that the City is a public agency subject to
the Florida Public Records Act and that it is a custodian of such records as noted in subsection (a)
above. Subject to the Florida Public Records Act, Chapter 119, Florida Statutes, Project Manager
shall ensure that any exempt Project Manager records are marked or stamped as being exempt and
shall explicitly provide the applicable statutory exemption.
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(c) Notwithstanding the foregoing, the Parties and their affiliates and
representatives may upon obtaining the City Manager's written consent (i) issue press releases, (ii)
make any other public announcements or statements with respect to the transactions contemplated
by this Agreement, and (iii) disclose the name of Project Manager; provided, that prior to issuing
any press releases or other written public announcements or statements, the City shall consult with
Project Manager upon the content and timing of any press release or other written public
announcement or statement and use good -faith efforts to include any reasonable comments from
Project Manager.
(d) To the extent allowed by law, Project Manager may disclose information on
a confidential basis to the direct and indirect beneficial owners of Project Manager and its directors,
officers, employees, attorneys, accountants, consultants, agents, investors or potential investors in
Project Manager, and Project Manager's lenders or potential lenders to the extent (a) any such
party needs to know such information in connection with the development of the City Project and
(b) such party is subject to confidentiality obligations to the disclosing party with respect to the
information provided.
8.24 Limitation of Liability.
(a) Notwithstanding anything to the contrary contained in this Agreement or in
any exhibits attached hereto, it is expressly understood and agreed by and between the Parties
hereto that no personal liability or personal responsibility of any sort with respect to any obligation
of Project Manager hereunder or any alleged breach by Project Manager is assumed by, or shall at
any time be asserted or enforceable against, Project Manager's direct or indirect member(s),
manager(s), officer(s), or any of their respective shareholders, directors, officers, employees,
agents, constituent partners, members, beneficiaries, trustees, representatives or advisors.
(b) TO THE FULLEST EXTENT ALLOWED BY LAW, AND
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT OR THE
EXISTENCE OF APPLICABLE INSURANCE COVERAGE, THE TOTAL LIABILITY, IN
THE AGGREGATE, OF PROJECT MANAGER TO THE CITY OR TO ANYONE CLAIMING
BY, THROUGH OR UNDER THE CITY, FOR ANY AND ALL CLAIMS, LOSSES, COSTS
OR DAMAGES WHATSOEVER ARISING OUT OF, RELATED TO OR IN ANY WAY
CONNECTED WITH THE SERVICES UNDER THIS AGREEMENT FROM ANY CAUSES
WHATSOEVER, INCLUDING THE NEGLIGENCE, STRICT LIABILITY OR BREACH OF
CONTRACT OR ANY WARRANTY, EXPRESS OR IMPLIED, OF PROJECT MANAGER
SHALL NOT EXCEED THE COMPENSATION RECEIVED BY PROJECT MANAGER
UNDER THIS AGREEMENT AS OF THE DATE ANY SUCH CLAIM, LOSS, COST OR
DAMAGE IS ALLEGED AND/OR INCURRED (AS APPLICABLE), UP TO A LIMIT OF
FIFTY PERCENT (50%) OF THE TOTAL COMPENSATION PAYABLE TO PROJECT
MANAGER UNDER THIS AGREEMENT.
8.25 Authority. Each Party represents to the other that it has the power and authority to
enter into this Agreement and that the person executing on its behalf has the power to do so and to
bind it to the terms of this Agreement.
23
ACTIVE 683271317v2
8.26 Expert Resolution Process. All disputes regarding the matters described in Sections
1.1, 1.2, 1.5, 2.1, 3.1, 3.2, 4.4, and 6.21 (individually, an "ERP Dispute" and collectively, the
"ERP Disputes"), shall be resolved in accordance with the expert resolution process described
below in the provisions of this Section 6.26 (the "ERP").
(a) The Party desiring that the Expert resolve any ERP Dispute (the "Initiating
Party") shall give notice in accordance with the provisions of this Agreement to the other Party
(the "Recipient Party") that it desires to initiate the ERP (the "ERP Notice"). The Initiating Party
and the Recipient Party shall agree on the Expert as set forth in subsection (f) below. The cost of
the ERP shall be borne equally between the Parties.
(b) Within thirty (30) days after the selection of the Expert, the Initiating Party
and the Recipient Party shall submit their ERP Dispute to the Expert for determination. The Expert
shall discuss the ERP Dispute in detail with the Initiating Party and the Recipient Party and
otherwise undertake such investigation and study such materials as the Expert believes reasonably
necessary to make an informed decision. Examination of witnesses by the Initiating Party and the
Recipient Party and by the Expert shall be permitted in the discretion of the Expert.
(c) A written transcript of the proceeding shall be made and furnished to the
Parties. The Expert shall determine any ERP Dispute, controversy or claim under this Agreement
in accordance with the terms hereof. The Expert shall state the reasons upon which its decision is
based in writing. The decision of the Expert shall be issued promptly but in no event later than
thirty (30) days after the Parties have submitted their final statements and proofs to the Expert.
Each Party shall have the right to bring an action in any court of competent jurisdiction to enforce
the Expert's award.
(d) The Expert may grant any remedy or relief within the scope of this
Agreement and the applicable provisions hereof and under applicable law. In the absence of fraud,
gross misconduct, collusion, departure from the essential requirements of law or an error in law or
a material fact appearing on the face of the order or award issued by the Expert, the written decision
of the Expert shall be final and binding on the Parties. The Parties intend that the decision by the
Expert shall be binding for all purposes and that no right of appeal shall exist; for the sake of
clarity, any such ERP Dispute may not be relitigated through the ERP process or otherwise.
(e) The Parties voluntarily and knowingly waive any right to pursue any ERP
Disputes involving the Parties in any forum or through any process or proceeding other than the
process and procedures set forth in Section. The foregoing process shall be the exclusive method
available for resolution of ERP Disputes hereunder that cannot otherwise be resolved.
(f) For purposes of this Agreement, "Expert" means an independent nationally
recognized consulting or other firm or individual having at least ten (10) years recent professional
experience as to the subject matter in question, who is qualified to resolve the issue in question
and who is appointed in each instance by agreement of the Parties. In the event either Party calls
for an Expert determination pursuant to the terms hereof, the Parties shall have thirty (30) days
from the date of such request to mutually agree on one (1) recognized consulting firm or individual
24
ACTIVE 683271317v2
with relevant experience as the Expert and, if they fail to agree, each Party shall have an additional
ten (10) days to each select one (1) recognized consulting firm or individual with relevant
development experience as the Expert and within ten (10) days of such respective selections, the
two (2) respective firms and/or individuals so selected by each of the Parties hereto shall select
another such recognized consulting firm or individual to be the Expert. If either Party hereto fails
to make its respective selection of a firm or individual within the ten (10) day period provided for
above, then the other Party's selection shall be the Expert. Also, if the two respective firms and/or
individuals so selected shall fail to select a third recognized consulting firm or individual to be the
Expert, then the Expert shall be appointed by the American Arbitration Association in Miami -
Dade County, Florida.
8.27 Covenant of Good Faith. The Parties affirm, agree and represent that they will
employ good faith and utilize fair dealing in the conduct all actions, undertakings and performance
under this Agreement.
8.28 Compliance with Federal, State and Local Laws. Project Manager understands
that agreements between private entities and local governments are subject to certain laws and
regulations, including laws pertaining to public records, conflict of interest, record keeping, etc.,
and certain professional standards for the applicable professions assisting local governments. City
and Project Manager acknowledge that this Agreement shall be subject to all applicable laws and
further agree to comply with and observe all applicable federal, state, local laws, codes,
ordinances, and professional standards, as they may be amended from time to time. Additionally,
Project Manager agrees to require its employees, its agents, and its subcontractors to comply with
and observe all applicable laws, codes, ordinances, and professional standards, as they may be
amended from time to time.
8.29 Further Assurances. In addition to the obligations required to be performed under
this Agreement by the parties, the parties shall perform from time to time such other acts, and shall
execute, acknowledge and/or deliver such other instruments, documents and/or other materials, as
may be reasonably required to consummate the transactions described in this Agreement, subject
to any requirements under all applicable laws, including without limitation any applicable
requirements to obtain City Commission approval.
8.30 Reaffirmation of Representations. Project Manager hereby reaffirms all of the
representations contained in the Response to the RFP and related solicitation documents.
8.31 Entire Agreement. This Agreement contains the final and entire agreement
between the Parties with respect to Project Manager's engagement hereunder. The Parties shall
not be bound by any terms, conditions, statements, warranties or representations, oral or written,
with respect to such engagement not contained in this Agreement.
[Signature Pages Follow]
25
ACTIVE 683271317v2
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day
and year first above written.
PROJECT MANAGER:
ADLER DEVELOPMENT MANAGER LLC, a
Florida limited liability company
By:
Name:
Title:
CITY:
Attest: CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Todd B. Hannon, City Clerk Arthur Norriega V
City Manager
APPROVED AS TO LEGALFORM
AND CORRECTNESS
By:
Victoria Mendez, City Attorney
Approved as to Insurance:
By:
Ann Marie Sharpe, Director of Risk
Management
ACTIVE 683271317v2
EXHIBIT "A"
PROJECT MANAGER PROPOSAL (for reference only)
Proposal and Recommendations submitted by Project Manager regarding the City Project's
concept, development strategy, architectural and design schedule guidelines
The Project Manager ("Adler"), proposes delivering to the City a turn -key economically viable, efficient,
and well- designed new City of Miami administration building ("New Facility") that meets the
requirements of the RFP including a minimum LEED Silver rating. Adler believes that the process of
delivering the New Facility is a collaborative one between and amongst the development team (i.e., Adler,
design professionals, engineers, consultants, and a general contractor) and the City. In executing that
collaborative design -build -process, it is Adler's intent to routinely involve and coordinate with the City
(and its project manager), in the development and design of the New Facility, with the goal of delivering,
on -time, the City's New Facility.
While utilizing best building practices and innovative design and engineering, Adler plans to deliver the
New Facility as detailed herein:
- The New Facility shall strive to comply with all of the functional and technical requirements of the
RFP 1.
- The New Facility will be comprised of at least 230,000 usable square feet of office space (using
BOMA measurement standards), as well at least 700 parking spaces.
- The base building shall be of sound and solid construction with facades of stucco, stone, glass, steel
or other permanent materials. The building design shall reflect the dignity and public service nature
of its governmental functions; it will appear welcoming to visitors and its architectural design shall
fit contextually in its immediate surroundings as they currently exist or as city development plans
contemplate.
- Finished ceiling heights on typical office floors shall be no less than 9 feet. Finished ceiling height on
the ground floor shall be a greater height; the public hearing room shall have a ceiling height of no
less than 12 feet.
- In order to maximize flexibility of workspace layout, spacing of any columns in workspace areas shall
be 30 feet on center. Perimeter columns shall be spaced no less than 20 feet on center.
- The building shall meet all requirements of the Miami 21 zoning code for the transect zone in which
it is located.
- The building shall meet all requirements of the Florida Building Code, including the provisions for
High Velocity Hurricane Zones that are incorporated by reference into the Miami -Dade County
Building Code.
- The building shall be designed to attain a Silver rating in the LEED accreditation system (or
equivalent) administered by the U.S. The City will be provided an updated scorecard at the issuance
of drawings at each major design phase.
1 Unless modified at City's request.
ACTIVE 683271317v2
- Landscaping will use native species that can survive naturally in the Miami climate and shall consider
storing rainwater on site during the rainy season for use in the dry season.
- The building shall have full Wi-Fi, including coverage on any outdoor plaza or terrace, rooftop and
public spaces.
- The BUILDING will meet ADA accessibility requirements.
- The BUILDING shall include basic Furniture, Fixtures and Equipment (FF&E) for the following
programmatic requirements:
o Office furniture
o Workstation furniture Conference furniture
o Training room furniture
o Pantry equipment and furniture
o Public waiting area furniture.
- The ground floor will provide a main pedestrian entrance into the lobby that in scale and design
provides a dignified and welcome entry portal as well as a common waiting area easily identified and
accessible from the main entrance.
Methodology for Obtaining Building Permits and Government -Regulatory Approvals
With a history that spans over fifty years and three generations, Adler Group ("Adler") has developed
industrial, office, retail and residential units throughout the state of Florida. With this experience, comes
knowledge, experience and comfort in working with the Florida Building Code, Miami 21, and other
permitting and government -regulatory matters.
We pride ourselves on not only our familiarity with the permitting and regulatory processes, but in also
our hiring of the best of the best consultants who too have fluency with such processes, including a
comprehensive development of master plans, zoning approvals including review by the Urban
Development Review Board (UDRB), land subdivision/plat approvals, infrastructure approvals,
construction permitting approvals, inspections approvals, and obtaining certificates of occupancy.
We have also found that using the services of a private provider helps to expedite the plan review process,
obtaining a building permitl, and getting the building open for business. For example, under Florida
Statute 553.791 a private provider is authorized to review and sign -off on the five main building
disciplines (structural, building, mechanical, electrical, and plumbing). Upon determining that the plans
meet the code's requirements, the private provider will prepare affidavits signed and sealed by
professional engineers for each trade.
While the private provider reviews the plans, identical sets are submitted to the City of Miami to begin
the review process with outside agencies (i.e., Fire, DERM, Zoning, Public Works, Water and Sewer).
Once approval from these agencies has been obtained, plans are consolidated with the private provider's
approved set and resubmitted to the City along with affidavits for final approval.
During construction, the private provider, via its State of Florida licensed inspectors, will perform
inspections as required by the Florida Building Code2. And pursuant to the Florida Building Code, a
1 To obtain a formal building permit, approval from outside agencies (i.e., Fire, DERM, Zoning, Public Works, Water and
Sewer, etc.) is also required.
2 These inspections are typically performed by the City of Miami Building Department personnel.
ACTIVE 683271317v2
registered professional engineer will oversee (on a regular basis) the work being performed by the
inspectors.
Prior to the commencement of construction, there will be a coordination meeting (generally on -site) with
the development team, the general contractor, and the private provider's project manager and inspectors.
During this meeting, the private provider's project manager will deliver the inspection log books, review
the project schedule, discuss inspection procedures and offer recommendations for the most effective and
cost -saving approach re: the inspections.
The private provider's inspectors will perform the required inspections and provide a detailed report of
their findings. A copy of the inspection report will be filed in the inspection log book and will be stored
at the building site and be made available for review by the City. Upon completion of all required
inspections, private provider's inspectors will prepare a certificate of compliance, signed and sealed by
the engineer attesting that the building construction, as inspected, complies with the approved plans and
all applicable codes.
ACTIVE 683271317v2
Construction Schedule Overview'
1 This is tentative construction schedule based on information currently known to Project Manager and is therefore subject to
change and updates. As such, the construction schedule and dates herein represent the Project Manager's commercially
reasonable estimation of the construction schedule based on current information as to the scope and size of the City's office
building.
ACTIVE 683271317v2
City of Miami Administration Building
Task Name
Duration Weeks
Start
Finish
Total Project
258
2/1/2023
1/10/2028
City Review and Approve Preconstruction Budget / Allocate Funds
4
2/1/2023
3/1/2023
Out for Proposals for Design Team and Vendors
4
2/14/2023
3/7/2023
Receive Proposals and Evaluate Proposals
2
3/13/2023
3/24/2023
Engagement of Architect and Engineers
26
3/27/2023
9/25/2023
ENTITLEMENTS PHASE (Concurrent with SD Phase)
22
9/25/2023
2/26/2024
City of Miami Entitlements
8
9/25/2023
11/20/2023
Preparation of Preliminary Design by Design Team
8
9/25/2023
11/20/2023
Submittal of Waiver Application
2
11/20/2023
12/4/2023
Submittal of UDRB Application
2
12/4/2023
12/18/2023
UDRB Hearing
4
12/18/2023
1/15/2024
Approval of Waiver Application
2
1/15/2024
1/29/2024
Final Site Plan Approval of Waiver
4
1/29/2024
2/26/2024
DESIGN DEVELOPMENT
22
2/26/2024
7/29/2024
50% Design Development Working Time
6
2/26/2024
4/8/2024
100% Design Development submittal
4
4/8/2024
5/6/2024
Owner's Design Development Review
2
5/6/2024
5/20/2024
100% DD - Owner review and Cost Estimate of DD Phase
2
5/20/2024
6/3/2024
100% DD - Value Engineering Workshop
2
6/3/2024
6/17/2024
100% DD - Owner approval of DD final submittal
6
6/17/2024
7/29/2024
CONSTRUCTION DOCUMENTS
24
7/29/2024
1/13/2025
30% Construction Documents Working Time
8
7/29/2024
9/23/2024
80% CD / GMP Documents
6
9/23/2024
11/4/2024
Owner's GMP and Construction Documents Review / Approvals
6
11/4/2024
12/16/2024
Owner approval: GMP Established
6
11/4/2024
12/16/2024
100% CDs / Master Permit Documents
4
12/16/2024
1/13/2025
PERMITTING PROCESS
24
11/4/2024
4/21/2025
Submit Full Building Permit
4
1/13/2025
2/10/2025
Approve Building Permit
2
2/10/2025
2/24/2025
Permit Issuance
1
2/24/2025
3/3/2025
Delivery of Master Building Permit
1
3/3/2025
3/10/2025
CONSTRUCTION PROCESS
148
3/10/2025
1/10/2028
Notice of Commencement
0
3/10/2025
3/10/2025
Mobilization (Contractor)
4
3/10/2025
4/7/2025
Building Construction
140
4/7/2025
12/13/2027
Substantial Completion / Move In
4
12/13/2027
1/10/2028
EXHIBIT "B"
PREDEVELOPMENT BUDGET
City Project
Predevelopment Budget
Description
Total
Architecture & Engineering
Permit Fees
Legal & Professional
General & Administrative
Development Fee
Contingency
$5,321,000
$100,000
$810,000
$200,000
$350,000
$271,240
Total Predevelopment Cost
$7,052,240
ACTIVE 683271317v2
EXHIBIT "C"
ESTIMATED COMBINED DEVELOPMENT BUDGET
City Project
Estimated Combined Development Budget
Description
Total
Core & Shell Costs (Division 1-16)
Office Tenant Improvements
Office FF&E
$190, 000, 000
$32,300,000
$17,100,000
Total Hard Costs
Architectural & Engineering
Permits & Impact Fees
Legal & Professional
Insurance
Retail TI & Commissions
General & Administrative
Development Fee
Contingency
$239,400,000
$5,815,500
$2,868,000
$941,200
$3, 000, 000
$320,000
$ 2, 000, 000
$13,914,235
$23,940,000
Total Soft Costs
$52,798,935
Estimated Combined Development Budget $292,198,935
ACTIVE 683271317v2
EXHIBIT "D"
ACKNOWLEDGMENT AND CONSENT
The undersigned, CITY OF MIAMI, a municipal corporation of the State of Florida (the "City"),
hereby acknowledges receipt of a copy of the executed version of that certain
("City Project Agreement"), to be entered into by
and between Adler Development Manager LLC, a Florida limited liability company ("Adler"),
and . A copy of the City Project Agreement is attached to
this Acknowledgement and Consent as Exhibit "A". The City hereby agrees and confirms that the
City has reviewed, acknowledged and hereby consents to Adler's entering into such City Project
Agreement for the benefit of the City in connection with the design, development and construction
of the City's new administration building.
Date:
This Acknowledgment and Consent has been executed as of the day of
20 .
ACTIVE 683271317v2
CITY:
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
Arthur Noriega V
City Manager
ATTEST:
By:
Todd B. Hannon, City Clerk
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
By:
Victoria Mendez
City Attorney
ACTIVE 683271317v2
Exhibit "A"
City Project Agreement
(execution version attached)
ACTIVE 683271317v2
EXHIBIT "E"
GMP Terms
(1) General Contractor shall indemnify, hold harmless, and defend (at its own cost and
expense), the City, Project Manager, its officers, agents, directors, and/or employees, and any
involved City agencies and instrumentalities, from all liabilities, damages, losses, judgements,
expenses, fees, and costs, including, but not limited to, reasonable attorney's fees, to the extent: (i)
caused by the negligence, recklessness, negligent act or omission, or intentional wrongful
misconduct of or breach of the GMP Contract by General Contractor and persons employed or
utilized by General Contractor in the performance of the GMP Contract; (ii) arising or resulting
from the permitted Work; and/or (iii) resulting from a failure by General Contractor, or persons
employed or utilized by General Contractor in the performance of the GMP Contract, to comply
with applicable contractual duties or codes, laws, rules, licenses, permits, and regulations in
performance of the work. If any action or proceeding is brought against the City by reason of any
such action, claim or demand, the General Contractor shall, upon written notice from the City,
resist and defend such action or proceeding by counsel reasonably satisfactory to the City. The
indemnification, hold harmless, and duty to defend by General Contractor shall be to and through
trial, administrative, regulatory, appellate, supplemental, mediation, arbitration, or bankruptcy
proceeding, or to provide for such defense, at the City's option, against any and all claims of
liability and all suits and actions of every name and description which may be brought against the
City, whether performed by the General Contractor, or persons employed, supervised, or utilized
by General Contractor. The indemnification, hold harmless, and duty to defend by General
Contractor and Project Manager shall survive the cancellation or expiration of the GMP Contract;
(2) General Contractor shall require all sub -contractor agreements to include a provision that
each sub -contractor will indemnify, hold harmless and defend the City in relation to the goods and
services provided, and in substantially the same manner as required by the General Contractor;
(3) General Contractor agrees and recognizes that the City shall not be held liable or
responsible for any claims which may result from any actions or omissions of the General
Contractor and Project Manager in which the City participated either through review or
concurrence of General Contractor's actions, recognizing that by way of such review, the City in
no way assumes or shares any responsibility or liability of the General Contractor or sub-
contractors.
(4) General Contractor shall represent, warrant and guarantee to the City that General
Contractor shall completely, timely, and properly perform the work and all of its obligations under
the GMP Contract, in accordance therewith, for the price to be agreed upon by the parties, which
shall constitute guaranteed maximum cost to the City for performing such work inclusive of labor,
materials, equipment, supplies, and allowable overhead and profit. The City shall have no liability
or obligation to pay any amount in excess of the stated maximum price and the General Contractor
shall have no recourse in that respect except to seek an amendment to the GMP Contract. All costs
in excess of the agreed -upon contract price shall be paid solely by the General Contractor without
ACTIVE 683271317v2
reimbursement or additional compensation from the City.
(5) Pursuant to, and to the extent required by, City Code Section 18-89(f), General Contractor
shall employ the minimum percentage requirements set forth in the City Code for on -site labor
from persons residing within Miami -Dade County (an individual whose primary place of residence
is within Miami -Dade County), for the duration of the City Project.
(6) Pursuant to, and to the extent required by, City Code Section 18-120, General Contractor
shall pay, and shall require its subcontractors to pay, Miami -Dade County Responsible Wages and
Benefits to all laborers and mechanics assigned to the Project.
(7) Neither General Contractor nor any subcontractors, suppliers, or consultants shall be a
person or entity with whom the City of Miami or any United States citizens may not legally do
business. Similarly, and without limitation of the foregoing, neither General Contractor nor any
subcontractors, suppliers, or consultants shall have been placed on the convicted bidder list
following a conviction for a public entity crime.
(8) Any insurance protection required by the GMP Contract or otherwise provided by the
General Contractor shall in no way limit the General Contractor's responsibility to indemnify,
keep, and save harmless and defend the City or its officers, employees, agents, agencies, and
instrumentalities as herein provided.
(9) The creation of a contingency fund for reasonably unanticipated expenses ("Contingency
Funds") shall be formally established in the GMP Contract. The use of Contingency Funds shall
be for certain permitted uses by General Contractor as will be documented in the GMP Contract
in consultation with the City and the City Project Representative. The Owner Contingency shall
be contingent funds outside of the GMP to be used exclusively by the City for desired changes to
the City Project. Buyout Contingency shall be contingent funds within the GMP resulting from
the buyout of subcontracts and vendors and approved post-GMP Value Engineering to be used for
the benefit of the City to fund approved General Contractor change order requests. The
Contractor's Contingency shall be contingent funds within the GMP to be used by the General
Contractor for GMP line -item busts and scope omissions after express written approval by the
Project Manager and City Representative. Excepting those Value Engineering savings produced
by the design team prior to the established GMP, which shall inure 100% to the City, the GMP
Contract shall provide that upon completion of the City Project, any cost savings realized with
respect to the Predevelopment, Development and Construction Budgets shall be shared between
the Project Manager and City equally.
(10) The City is an express third -party beneficiary of all obligations of General Contractor under
the GMP Contract and the General Contractor agrees: (a) that the City may bring legal actions
under the GMP Contract in its name as beneficiary without the participation of Project Manager;
and (b) that all warranties, express and implied, run to both Project Manager and the City. The
City, at its option, may elect to invoke the automatic assignment to the City of all agreements and
contracts between Project Manager and any subcontractors and any purchase orders for materials,
ACTIVE 683271317v2
if any, in the event that City has the right to enforce its rights under the GMP Contract as described
above.
(11) The City will retain funds from the Contractor's Application for Payment in accordance
with the terms of the GMP Contract.
ACTIVE 683271317v2
EXHIBIT "Fl"
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE
CONSTRUCTION MRC ADMINISTRATION PROJECT
OCIP/CCIP PROGRAM
I. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $2,000,000
General Aggregate Limit $ 4,000,000
Products/Completed Operations $ 2,000,000
Personal and Advertising Injury $ 2,000,000
B. Endorsements Required
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN ADDITIONAL INSURED
Contingent and Contractual Liability
Explosion, Collapse and Underground Hazard
Primary Insurance Clause Endorsement
Extended Completed Operations Endorsement proving 10 years
coverage extension following project completion, including City as
additional insured
Independent and Sub -Contractors enrolled in program
Including Crane and Rigging Liability, as applicable
Contractor's Pollution Included
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 $ 5,000,000
B. Endorsements Required
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN ADDIITONAL INSURED
Including Crane and Rigging Liability, as applicable
ACTIVE 683271317v2
Florida
C. Worker's Compensation Limits of Liability (Part A): Statutory, per State of
A. Limits of Liability (Part B)
$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.
Article 9
Waiver of subrogation
IV. Umbrella Policy
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ 50,000,000
Aggregate $ 50,000,000
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN ADDITIONAL INSURED
V. Excess Liability
Each Occurrence
Policy Aggregate
$50,000,000
$50,000,000
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN ADDITIONAL INSURED
Extended Completed Operations Endorsement proving 10 years
Coverage extension following project completion, including City as
additional insured if claims made, retro date applies prior to contract
inception.
VI. Payment and Performance Bond $TBD
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS AN OBLIGEE
VII. Builders' Risk
Causes of Loss: All Risk -Specific Coverage Project Location
Valuation: Replacement Cost Total Cost of Renovation
Deductible: $250,000 for all other perils and $500,000,000 water
damage.
ACTIVE 683271317v2
5% Maximum on Wind/Hail and Flood
CITY OF MIAMI, ITS EMPLOYEES, OFFICIALS, AND
INSTRUMENTALITIES LISTED AS LOSS PAYEE
VIII. Safety/claims and deductibles
Safety and loss control shall be always exercised by the Contractor for the protection of all
persons, employees, and property. Any hazardous conditions must be promptly identified,
reported, and action taken to mitigate as soon as possible.
Notice of claims/accidents/incidents associated with this agreement shall be reported to the
Contractor's insurance company and to the City's Risk Management depailiuent as soon as
practical.
The Contractor has the sole responsibility for all insurance premiums and shall be fully and
solely responsible for any costs or expenses because of a coverage deductible, co-insurance
penalty, or self -insured retention; including any loss not covered because of the operation of such
deductible, co-insurance penalty, self -insured retention, or coverage exclusion or limitation.
The above policies shall provide the City of Miami with written notice of cancellation or
material change from the insurer in accordance with 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.
ACTIVE 683271317v2
EXHIBIT "F2"
INSURANCE REQUIREMENTS-MRC PROJECT MANAGEMENT ADMINISTRATION
III. Commercial General Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Personal and Adv. Injury $ 1,000,000
Products/Completed Operations $ 1,000,000
B. Endorsements Required
City of Miami listed as additional insured
Contingent & Contractual Liability
Premises and Operations Liability
Primary Insurance Clause Endorsement
IV. 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 listed as an additional insured
V Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of Subrogation
Employer's Liability
A. Limits of Liability
$500,000 for bodily injury caused by an accident, each accident
$500,000 for bodily injury caused by disease, each employee
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$500,000 for bodily injury caused by disease, policy limit
IV. Professional Liability/Errors and Omissions Coverage
Combined Single Limit
Each Claim $5,000,000
General Aggregate Limit $5,000,000
Retro Date Included
V Umbrella Liability
Each Occurrence $5,000,000
Policy Aggregate $5,000,000
Retro Date Included
Project Manager agrees to maintain professional liability/Errors & Omissions
coverage for a minimum of 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 /or certificates of
insurance are subject to review and verification by Risk Management prior to insurance approval.
ACTIVE 683271317v2
EXHIBIT "H"
ESTOPPEL CERTIFICATE
(Note: This form subject to amendments based on the requirements of the City Attorney)
RE: Development Management & Construction Agreement dated , 2019
(the "Agreement") by and between the CITY OF MIAMI, a municipal corporation of the
State of Florida (the "City"), and ADLER DEVELOPMENT MANAGER LLC, a
Florida limited liability company (the "Project Manager"), with respect to the Project to
be developed on the Land located in the City of Miami, Miami -Dade County.
Ladies and Gentlemen:
The undersigned hereby provides the information below pursuant to Section 6.1 of the
Agreement. Capitalized terms used herein without definition have the meaning given to them in
the Agreement.
In connection therewith, the undersigned hereby certifies to you and agrees with you as
follows:
1. The Agreement is valid and is in full force and effect and is binding and enforceable against
the [Project Manager][City].
2. To the best of the [Project Manager's][City's] knowledge, the [Project Manager][City] is
not in default under the Agreement and there exist no facts that could constitute a basis for any
such default upon the lapse of time or the giving of notice or both. There exist no offsets,
counterclaims, or defenses of any Party under the Agreement against the other Party, and there
exist no events that would constitute a basis for any such offset, counterclaim, or defense against
any Party upon the lapse of time or the giving of notice or both.
3. The Agreement (a true, correct and complete copy of which, including all riders, exhibits,
modifications and amendments to the Agreement (if any), is attached as Exhibit A hereto)
constitutes the entire agreement between the City and the Project Manager. The Agreement has
not been modified, supplemented or amended in any way other than as follows:
4. This certificate is made for the benefit of (and may be relied upon by) the [Project
Manager][City], you and your successors and assigns, and shall be binding upon the [Project
Manager] [City] and its successors and assigns. To the extent not delivered to same, this certificate
ACTIVE 683271317v2
may be relied upon by any prospective assignee, transferee, or any Lender or any assignee thereof.
The person signing this certificate on behalf of the [Project Manager][City] has been, and is, duly
authorized to do so and has been, and is, duly authorized to bind the [Project Manager][City] to
the terms hereof.
[Signature page follows]
ACTIVE 683271317v2
This certificate has been executed as of the
day of
CITY:
2
CITY OF MIAMI, a municipal corporation
of the State of Florida
By:
, [insert name/title of the City
Official or his/her designee]
ATTEST:
By:
, City Clerk
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
By:
Name:
Title:
ACTIVE 683271317v2