HomeMy WebLinkAboutBack-Up DocumentsMEMORANDUM OF AGREEMENT
BETWEEN
CITY OF MIAMI, FLORIDA
AND
VIRGINIA KEY BEACH PARK TRUST
FOR THE VIRGINIA KEY BEACH MUSEUM
This Memorandum of Agreement (this "Agreement" or "MOA") is made and entered into as of this
day of , 20 , (the "Effective Date") by and between the City of Miami, Florida,
a Florida municipal corporation (the "City"), and the Virginia Key Beach Park Trust, a limited agency and
instrumentality of the City (the "Trust"). The City and the Trust are each a "Party" and together the "Parties."
RECITALS
WHEREAS, the City is a Florida municipal corporation with home -rule powers under Article VIII,
Section 2 of the Florida Constitution and Chapter 166, Florida Statutes, and is authorized to enter into
intergovernmental and interagency agreements to carry out municipal purposes, and the Trust is a limited
agency and instrumentality of the City established by City Commission Ordinance No. 12003 and
authorized by its governing legislation to plan for, support, and operate facilities and programs associated
with Historic Virginia Key Beach Park; and
WHEREAS, Miami -Dade County ("County") has provided or will provide financial assistance to
the City in the amount of $20,500,000.00 (the "Grant") for the planning, design, permitting, construction,
and related costs of a museum facility at Historic Virginia Key Beach Park (the "Museum"), as set forth in
County Resolution Nos. R-304-01 and R-919-04 and accepted by the City pursuant to City Resolution No.
R-19-0235 attached and incorporated as Exhibit "A"; and
WHEREAS, the City has offered to oversee and manage the construction of the Museum
improvements (the "Project"), including procurement and administration of contracts for design and
construction, in compliance with all applicable laws, rules, and regulations and the City's procurement rules
and policies, and consistent with the concept and business plan attached and incorporated as Exhibit "B"
(the "Concept and Business Plan"); and
WHEREAS, the Parties intend that the Trust will participate in design development by reviewing
and commenting on design submittals at appropriate approval stages (anticipated at the 30%, 60%, 90%,
and 100% design milestones, or at another cadence established between the City and the design
professional) so that the completed design aligns with the Concept and Business Plan and the Trust's
anticipated operational needs; and
WHEREAS, in consideration of the City's supervision and administrative services for the Project,
the City may recover an administrative fee for its supervision and administrative costs associated with the
construction of the Museum, which fee shall not exceed ten percent (10%) of the total Grant and shall in
no event exceed $2,000,000 (the "Administrative Fee"); and
WHEREAS, upon the City's determination of Final Completion of the Project, the Trust will
assume responsibility for the operation of the Museum, including day-to-day management, programming,
routine maintenance, staffing, and compliance with Applicable Laws; and
WHEREAS, upon the City's turnover of the Museum to the Trust, the City will, subject to annual
appropriation, provide operating support for a period often (10) City fiscal years in an amount not to exceed
One Million Seven Hundred Thousand Dollars ($1,700,000) per fiscal year, to fund the agreed operating
shortfall for operations, maintenance, and exhibits; and
WHEREAS, following the expiration of the ten-year support period, the Trust will be responsible
for standard maintenance of the Museum, and the City will remain responsible for maintenance of
mechanical, electrical, plumbing, and structural repairs and maintenance;
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the
Parties agree as follows:
1. Incorporation; Definitions
1.1. Incorporation of Recitals and Exhibits; Order of Precedence. The Recitals set forth above are
true and correct and hereby incorporated into and made a part of this Agreement. Additionally,
Exhibits A and B are incorporated into and made a part of this Agreement. In the event of a conflict:
(a) the body of this Agreement controls over any Exhibit or Recital; (b) among the Exhibits,
Exhibit A controls solely with respect to any express conditions that the County funding resolution
places on the use or recognition of County funds, and Exhibit B controls as to the concept
referenced herein; and (c) Recitals do not prevail over operative provisions. Furthermore, any
conflicts between this Agreement and any subsequent County Grant Agreement related to the
Project shall be resolved in favor of the County Grant Agreement.
1.2. Definitions. The following terms, when capitalized, have the meanings set forth below. Other
capitalized terms have the meanings given in context.
1.2.1."Administrative Fee" means the City's fee for supervision and administrative costs associated
with the construction of the Museum, not to exceed ten percent (10%) of the total County
Funding and in no event more than $2,000,000.
1.2.2."Applicable Laws" means all applicable federal, state, county, and city constitutions, statutes,
ordinances, codes, rules, regulations, orders, and policies.
1.2.3."Contractor" means the general contractor or construction manager at risk engaged by the
City to construct the Project.
1.2.4."County Funding" means the funds committed by the Miami -Dade County Board of County
Commissioners pursuant to Resolution Nos. R-304-01 and R-919-04 and accepted by the City
pursuant to City Resolution No. R-19-0235, attached as Exhibit A.
1.2.5."County Grant Agreement" means any subsequent written agreement (if any) executed after
the Effective Date between Miami -Dade County and the City that governs the County
Funding, including any amendments thereto.
1.2.6."Design Professional" means the architect and/or engineer engaged by the City for the
Project.
1.2.7."Eligible Costs" means costs of the Project for which County Funding may be expended
under Applicable Laws and any conditions stated in a subsequent County Grant Agreement.
1.2.8."Final Completion" means the date the City determines that the Project is fully complete in
accordance with the construction contract documents, all required approvals have been
obtained or closed, all punchlist items are complete, and closeout deliverables customary for
public projects (including as -built documents, operating and maintenance manuals,
warranties, and training records) have been delivered, whereupon the City accepts the Project
for turnover to the Trust.
1.2.9."Museum" means the Historic Virginia Key Beach Park Museum facility that is the subject
of the Project.
1.2.10. "Party" or "Parties" means the City and the Trust, individually or collectively.
1.2.11. "Procurement Rules" means the City's procurement ordinances, rules, policies, and
procedures applicable to the selection and contracting of Design Professionals and
Contractors.
1.2.12. "Project" means the planning, design, permitting, construction, commissioning, and
closeout of the Museum improvements consistent with Exhibit B.
2. Term.
2.1. Term. This Agreement commences on the Effective Date and shall continue in effect until the
September 30 in the last year of the 10-year Support Period, as hereinafter defined, unless
terminated earlier pursuant to Section 4.
2.2. Time and Scheduling. Time is of the essence. The City will maintain a master schedule for
planning, design, permitting, construction, and turnover, and will provide periodic updates to the
Trust. The City may adjust interim dates as needed to manage delivery; the City will give the Trust
prompt notice of any material schedule change and confer in good faith regarding mitigation.
3. Responsibilities of the Parties.
3.1. City Responsibilities. The City shall:
3.1.1.Plan, procure, and administer all contracts necessary to complete the Project in accordance
with Applicable Laws and the Procurement Rules, including the Contractor and Design
Professional.
3.1.2.Receive and administer the County Funding; establish and maintain separate accounts for the
Project; disburse funds solely for Eligible Costs; and provide status updates to the Trust at
reasonable intervals.
3.1.3 .Recover an Administrative Fee for supervision and administrative services related to
construction, not to exceed ten percent (10%) of the County Funding and in no event more
than $2,000,000, payable from County Funding.
3.1.4.Direct the design to conform to the concept described in Exhibit B; transmit design submittals
to the Trust for review at approximately the 30%, 60%, 90%, and 100% stages, or at another
cadence as provided in the City's contract with the Design Professional for the City's review;
consider the Trust's written comments in good faith; and provide written responses to identify
accepted and rejected comments.
3.1.5.Obtain or cause to be obtained all required permits and approvals; oversee construction,
including testing, inspections, and change management, within the limits of the County
Funding; and cause the work to conform to the contract documents and Applicable Laws.
3.1.6.Upon Final Completion, accept the work, compile and deliver customary closeout materials
(including as -built documents, operating and maintenance manuals, and transferable
warranties), and deliver possession of the Museum to the Trust for operations and
management.
3.1.7.Following turnover of the Museum to the Trust after Final Completion, the City shall, subject
to annual appropriation, provide funding for the Trust's annual operating shortfall for a period
often (10) full City fiscal years (October 1— September 30), beginning with the first full City
fiscal year that commences after turnover ("10-year Support Period"), as follows:
3.1.7.1. City funding is limited to the agreed difference between (i) the Trust's approved
operating expenses for the Museum (including operations, maintenance, and exhibits)
for the applicable City fiscal year and (ii) the Trust's projected revenues and other
confirmed funding for that year. In no event shall City funding exceed One Million
Seven Hundred Thousand Dollars ($1,700,000) in any City fiscal year ("Annual
Cap").
3.1.7.2. On or before April 1 of each year, the Trust shall submit to the City its proposed
operating budget for the forthcoming City fiscal year, including projected revenues,
expenses, and underlying assumptions. During the City's budget development
process, the Parties shall confer in good faith and agree in writing on the projected
shortfall for that fiscal year, which shall not exceed the Annual Cap.
3.1.7.3. The City shall disburse the agreed amount in periodic installments consistent with
City fiscal controls and cash -flow needs for the Museum. Disbursements in the first
fiscal year may be prorated if turnover occurs after the start of that fiscal year.
3.1.7.4. Funds provided by the City under this subsection shall be used solely for Museum
operations, maintenance, and exhibits as reflected in the approved budget for the
applicable fiscal year.
3.1.7.5. Within ninety (90) days after the close of each City fiscal year, the Parties shall
reconcile the agreed shortfall against actual revenues and expenses for that year. Any
City funds advanced in excess of the actual shortfall shall be refunded to the City
within sixty (60) days after reconciliation or, at the City's election, credited against
the City's funding for the next fiscal year. The City shall have no obligation to fund
any amount in excess of the annual cap.
3.1.7.6. City funding under this subsection shall be made from City funds and not from County
funds. County funds are restricted to planning, design, permitting, construction,
commissioning, and closeout of the Project.
3.1.8 .After expiration of the 10-year Support Period, the City and the Trust shall meet in good faith
to negotiate an agreement to cover the Parties' responsibilities for maintenance and operation
of the Museum moving forward.
3.1.9.The City's obligations under this subsection are subject to lawful appropriation by the City
Commission for each fiscal year and do not constitute a pledge of the City's ad valorem taxing
power or a debt, liability, or obligation of the City beyond the fiscal year for which funds are
appropriated. If funds are not appropriated for any fiscal year, the City shall provide written
notice to the Trust, and the Parties shall confer regarding adjustments to the Museum's
operating plan for that fiscal year.
3.2. Trust Responsibilities. The Trust shall:
3.2.1.Review each design submittal transmitted by the City and return written comments within the
review period specified by the City, which period shall be reasonable in light of the level of
completion, and designate a project representative authorized to provide direction.
3.2.2.Prepare policies, staffing plans, and other operational requirements necessary to open and
operate the Museum upon turnover, and coordinate with the City regarding equipment,
exhibits, and FF&E that bear on design.
3.2.3.Upon Final Completion, accept turnover and thereafter operate the Museum, including
programming and routine maintenance, in compliance with Applicable Laws, any applicable
County Grant Agreement, and its mission.
3.2.4.Following turnover of the Museum to the Trust after Final Completion, the Trust shall,
cooperate with the City for the 10-year Support Period as follows:
3.2.4.1. Consistent with Section 38-237 of the Code of the City of Miami, Florida, as
amended ("City Code"), on or before April 1 preceding the commencement of each City
fiscal year, the Trust shall submit to the City, in a form acceptable to the City Manager,
its proposed operating budget for the Museum for the forthcoming fiscal year, including
projected revenues, expenses, and underlying assumptions; during the City's budget
development process, the Parties shall confer and agree in writing on the projected
shortfall for that fiscal year for purposes of this Section 3.
3.2.4.2. City funds provided under this Section 3 shall be used solely for Museum
operations, maintenance, and exhibits as reflected in the Parties' agreed budget for the
applicable fiscal year. The Trust shall: (i) maintain books and records sufficient to
segregate and track the receipt and expenditure of City funds and (ii) shall not use City
funds for items not included in the agreed budget absent the City's prior written consent
3.2.4.3. The Trust shall use commercially reasonable efforts to maximize earned revenues
and procure grants and donations for the Museum. The Trust shall promptly notify the
City in writing of any material variance from projected revenues or expenses that would
affect the agreed shortfall.
3.2.4.4. The Trust shall provide the City with quarterly expenditure and performance
reports for the Museum in a form reasonably acceptable to the City, and, within ninety
(90) days after fiscal year-end, a year-end statement of revenues and expenses certified
by an authorized representative of the Trust. The Trust shall supply reasonable
supporting documentation requested by the City to substantiate projected and actual
revenues and expenses, including copies of contracts, invoices, and payroll records
related to budgeted operating items.
3.2.4.5. Within ninety (90) days after fiscal year-end, the Parties shall reconcile the agreed
shortfall against actual results for that fiscal year. Any City funds advanced in excess of
the actual shortfall shall be refunded to the City within sixty (60) days after
reconciliation or, at the City's election, credited against the City's funding for the next
fiscal year. If the actual shortfall exceeded the projected shortfall, the City shall pay the
difference only to the extent the City's total support for that fiscal year does not exceed
$1,700,000. Any amount above $1,700,000 shall be the responsibility ofthe Trust unless
the City Commission separately appropriates additional funds. Nothing herein obligates
the City to provide support in excess of $1,700,000 in any City fiscal year.
3.2.5.After expiration of the 10-year Support Period, the Trust shall be responsible, at its cost, for
routine and standard maintenance, repairs, and replacements of non-structural components
and finishes of the Museum, including, but not limited to, interior and exterior paint, ceiling
tiles, floor coverings, baseboards, non-structural walls and partitions, doors and hardware,
fixtures, casework, signage, window and glass replacement that is not structural, landscaping,
irrigation, janitorial services, pest control, and groundskeeping. The Trust shall coordinate
scheduling with the City when a task may affect structural elements or the mechanical,
electrical, or plumbing systems.
4. Termination and Suspension.
4.1. Termination for Convenience. Either Party may terminate this Agreement, in whole or in part,
for convenience upon thirty (30) days' written notice to the other Party.
4.2. Termination for Cause.
4.2.1.The City may terminate this Agreement, in whole or in part, upon written notice if the Trust
commits a material default and fails to cure within the applicable cure period. Material
defaults include: (i) misuse of City funds or failure to use City funds for eligible, budgeted
purposes; (ii) failure to submit the April 1 budget or to participate in good -faith in the
shortfall -setting process described in Section 3; (iii) failure to provide required reports or to
permit audit/records access; or (iv) failure to operate and maintain the Museum in accordance
with this Agreement after turnover;
4.2.2.The Trust may terminate this Agreement upon written notice if the City commits a material
default and fails to cure within the applicable cure period. Material defaults include: (i)
failure, without legal justification, to disburse agreed operating -support installments then due,
subject to the annual appropriation and $1,700,000 cap; or (ii) failure to perform another
material obligation required under this Agreement.
4.3. Temporary Suspension. The City may suspend the Project, in whole or in part, upon written
notice to the Trust if necessary to comply with Applicable Laws, a court order, or funding
limitations. During a suspension, the City will coordinate with the Trust to protect the work in
place and minimize added costs. The City will resume performance when the condition prompting
suspension is resolved. A suspension under this Section does not, by itself, constitute atermination,
nor does it create an entitlement to additional compensation beyond what is permitted under
Applicable Laws and within available County Funding.
4.4. Cure Periods._ Monetary defaults are subject to a fifteen (15) day cure period after written notice.
Non -monetary defaults are subject to a thirty (30) day cure period after written notice; if the default
cannot reasonably be cured within thirty (30) days, the defaulting Party shall have a reasonable
additional period, not to exceed sixty (60) days from notice, to cure if it begins cure within the
initial thirty (30) days and diligently prosecutes cure to completion.
4.5. Non -Appropriation. The City's operating -support obligations are subject to annual appropriation.
If the City Commission does not appropriate funds for any fiscal year, the City shall provide
written notice to the Trust. The City's obligation to provide operating support for that fiscal year
shall terminate without liability, and the Parties shall confer regarding adjustments to the
Museum's operating plan for that fiscal year. Non -appropriation is not a breach of this Agreement.
4.6. Effect of Termination.
4.6.1.Termination prior to Final Completion and Turnover. The Parties shall cooperate to close
out the Project consistent with County grant requirements and applicable law. The City shall
pay, from available County Funding and within the limits of Applicable Laws, for (a) eligible
costs properly incurred and not previously paid, and (b) reasonable, documented
demobilization costs required to wind down the Project. The Trust shall promptly return any
City property and deliver all work product and records relating to the Project in its possession.
4.6.2.Termination after Final Completion and Turnover. The Parties shall complete the
reconciliation described in Section 3.2.8, and the Trust shall refund or credit any overpayment
as provided therein. The Trust shall remain responsible for operating and maintaining the
Museum from and after the termination date, subject to any warranties and latent -defect rights
arising from the City's construction contracts. Nothing in this Section accelerates or modifies
the post -ten-year maintenance allocation.
5. Miscellaneous.
5.1. Public Records. Each Party shall comply with Florida's public records laws, including Chapter
119, Florida Statutes, and applicable records retention requirements. Each Party shall require its
contractors and consultants to comply with public records obligations to the extent applicable.
5.2. Sovereign Immunity. Each Party shall be solely responsible for the negligent or wrongful acts or
omissions of its officers, employees, and agents. Nothing in this Agreement is intended to serve as
a waiver of sovereign immunity or the limits of liability set forth in section 768.28, Florida
Statutes, or as otherwise provided by law. This provision shall survive expiration or termination
of this Agreement.
5.3. Dispute Resolution; Governing Law; Venue. Should any disputes arise, before initiating
litigation, the Parties shall confer in good faith at the senior -staff level. This Agreement is governed
by the laws of the State of Florida. Exclusive venue for any action arising out of or related to this
Agreement shall lie in the state courts of the Eleventh Judicial Circuit in and for Miami -Dade
County, Florida; the Parties consent to such venue and waive any objection based on forum non
conveniens.
5.4. Force Majeure. A Party's performance is excused to the extent it is prevented or materially
delayed by events beyond its reasonable control, including extreme weather, acts of God,
epidemic, labor stoppage not directed by the Party, governmental action or permitting delays not
caused by the Party, court order, or concealed or unforeseen site conditions. The affected Party
shall provide prompt written notice and shall use reasonable efforts to mitigate. Deadlines are
extended for the period of actual delay. This Section does not, by itself, create any entitlement to
additional compensation.
5.5. Notices. All notices or other communications required under this Agreement shall be in writing
and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested,
addressed to the other party at the address indicated herein or to such other address as a party may
designate by notice given as herein provided. Notice shall be deemed given on the day on which
personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt,
whichever is earlier.
AS TO THE TRUST AS TO THE CITY:
Athalie Edwards
Executive Director
4020 Virginia Beach Drive
Miami, FL 33149
aedwards@miami gov. com
Art Noriega
City Manager
444 SW 2' Avenue, 10t Floor
Miami, FL 33130
anoriega@miamigov.com
WITH A COPY TO:
George K. Wysong III
City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, FL 33130
gwysong@miamigov.com
Jose Perez
Office of Capital Improvements
444 SW 2' Avenue, 9th Floor
Miami, FL 33130
jrperez@miamigov.com
5.6. Assignment. Neither Party may assign this Agreement or delegate its material obligations without
the prior written consent of the other Party; provided, the City may enter into contracts with design
and construction professionals and vendors as contemplated herein.
5.7. Amendments; Modifications; Waivers. This Agreement may be amended only by a written
instrument signed by both Parties. No waiver is effective unless in writing and signed by the Party
waiving it, and a waiver on one occasion is not a waiver on another.
5.8. No Partnership. The Parties are independent public entities. Nothing herein creates a partnership,
joint venture, or agency relationship between them.
5.9. Third -Party Beneficiaries. This Agreement is solely for the benefit of the Parties. No third party
shall be deemed a beneficiary, except that nothing herein limits any audit or enforcement rights
expressly granted to Miami -Dade County by written agreement.
5.10. Severability. If any provision is held invalid or unenforceable, the remainder shall continue
in effect. Headings are for convenience only and do not affect interpretation.
5.11. Counterparts; Electronic Signatures. This Agreement may be executed in three (3) or
more counterparts, each of which shall constitute an original, but all of which, when taken together,
shall constitute one and the same agreement. This Agreement may be executed in counterparts,
each of which shall be an original as against either party whose signature appears thereon, but all
of which taken together shall constitute but one and the same instrument. An executed facsimile
or electronic scanned copy of this Agreement shall have the same force and effect as an original.
The parties shall be entitled to sign and transmit an electronic signature on 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.
5.12. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
with respect to the subject matter and supersedes all prior or agreements, promises, negotiations,
or representations not expressly set forth in this Agreement concerning the same subject matter.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the City of Miami, Florida, and the Virginia Key Beach Park Trust have
caused this Memorandum of Agreement to be executed by their duly authorized officers as of the Effective
Date.
ATTEST:
THE CITY OF MIAMI, A MUNICIPAL
CORPORATION OF THE STATE OF
FLORIDA
BY: BY:
Todd B Hannon Arthur Noriega
City Clerk City Manager
APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
BY: BY:
George K. Wysong III David Ruiz
City Attorney Interim Director of Risk Management
VIRGINIA KEY BEACH PARK TRUST, A
LIMITED AGENCY AND
INSTRUMENTALITY OF THE CITY OF
MIAMI
BY:
Athalie Edwards
Executive Director
APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
BY: BY:
George K. Wysong III David Ruiz
City Attorney Interim Director of Risk Management
EXHIBIT A
CITY AND COUNTY RESOLUTIONS
EXHIBIT B
CONCEPT AND BUSINESS PLAN