HomeMy WebLinkAboutExhibitDocusign Envelope ID: 51EED7E1-2AED-4A86-A4B3-27A545133520
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM
Arthur Noriega V DATE: December 19, 2025
City Manager
Chuck O. Ellis, Director SUBJECT: Approval of Findings to Waive
Department of Parks and Recreation Competitive Sealed Bidding Processes for Kirk
Signed by: Munroe Park and Fuller Street
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REFERENCES: City of Miami Ordinance No. XXX
ENCLOSURES: Development Agreement
Pursuant to City Code Section, 18-85, amended, it is respectfully recommended that the City Manager
waive competitive sealed bidding methods via this written finding and reasons herein. Said waiver shall
need to be ratified, confirmed, and approved by the Miami City Commission by four -fifths (4/5ths)
affirmative vote during an advertised public hearing.
These are my written findings waiving the requirements for competitive sealed bidding processes as not
being practicable or advantageous to the City of Miami ("City") to provide for public improvements at
Munroe Park and Fuller Street, insofar as an agreement with Coconut Grove Condo, LLC, a Delaware
Limited Liability Company ("CGC") to perform said work is reached. CGC is a business entity based in
Coral Gables, FL. Established recently on December 4, 2024, this Foreign Limited Liability Company is
recognized under the document number M24000015141. Governed by the Florida Department Of State,
the company is listed in active status in state records.
The proposed agreement between the City and CGC provides for a collaborative effort where CGC will
provide certain Public Improvements at Kirk Munroe Park including, but not limited to, resurfacing, striping,
and fencing of public tennis courts; reconstruction of the hitting wall; exterior improvements to the existing
tennis center building; construction of a new children's play area; construction of new concession building;
improvements to public spaces, including: installation and replacement of turf; installation of wood decking
below banyan tree in southeast corner of the park; landscaping and installation of water features
throughout the park; and installation of decorative perimeter fencing. The agreement further provides for
Public Improvements to Fuller Street including, but not limited to, installation of decorative pavers;
landscaping; specimen trees; signage; and other decorative elements. The total improvements are
estimated at $5,000,000.00, consisting of an anticipated $3,000,000.00 City contribution and a
$2,000,000.00 CGC contribution.
A waiver is warranted because a separate competitive procurement for construction management is not
advantageous to the City and risks losing CGC's contribution of $2,000,000 to subsidize the improvements
and the negotiated risk allocation (including the assumption of cost overruns) to CGC. Re -procuring design,
construction, and construction management services separately would materially risk loss of the subsidy,
increase the City's net cost for the improvements, and introduce delay and additional risk to the City.
If the City Commission concurs, and ratifies, my finding by a 4/5ths vote, the City Administration will
proceed to negotiate and execute an Agreement with CGC for their performance of this work.
Your signature below confirms your approval of waiving competitive sealed bidding processes for the
Public Improvements listed above.
Approved:
DocuSigned by:
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PAC-179 nRA',LI
Arthur Noriega V, City Manager
Date: January 3, 2026 1 08:54:51 EST
Docusign Envelope ID: 51EED7E1-2AED-4A86-A4B3-27A545133520
Page 2 - Recommendation of Award of ITB No. 24-25-035, NW 17th Street Improvements
Arthur Noriega V, City Manager
c: Natasha Colebrook -Williams, Deputy City Manager
Asael "Ace" Marrero, AIA, Assistant City Manager/Chief of Infrastructure
Erica T. Paschal Darling, CPA, Assistant City Manager/Chief Financial Officer
Barbara Hernandez, MPA, Assistant City Manager/Chief of Operations
Thomas M. Fossler, Assistant City Attorney, Office of the City Attorney
Annie Perez, CPPO, Director/Chief Procurement Officer, Department of Procurement
PR25029
Docusign Envelope ID: 51EED7E1-2AED-4A86-A4B3-27A545133520
This instrument prepared by and
after recording return to:
Javier E. Fernandez, Esq.
SMGQ Law
201 Alhambra Circle, Ste. 1205
Coral Gables, FL 33134
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MIAMI, FLORIDA
AND COCONUT GROVE CONDO, LLC REGARDING THE DEVELOPMENT OF
ZIGGARUT MIXED -USE PROJECT AND RELATED PUBLIC IMPROVEMENTS
WITH THE PRINCIPAL ADDRESS OF 3101 GRAND AVENUE, MIAMI, FL.
THIS AGREEMENT is entered into the day of , 2025, by and between
COCONUT GROVE CONDO, LLC, a Delaware limited liability company ("Developer") and the
CITY OF MIAMI, FLORIDA, a municipal corporation and subdivision of the State of Florida ("City")
(the Developer and the City together referred as the "Parties").
WITNESSETH:
WHEREAS, Owners (as described hereinbelow) have amassed property totaling
approximately 72,300 sq. ft. (1.66 acres +/-) of land within the Coconut Grove neighborhood of the
City bounded by Grand Avenue on the South, Florida Avenue on the North, and Matilda Street on
the East, which property is described in the attached and incorporated Exhibit A; and
WHEREAS, Owners through Developer propose to construct a mixed -use project, which
project shall be comprised of an Office Building, a 19-unit for -sale condominium residential
building, both with ground floor retail and supported by underground parking, to be known as the
Ziggarut (hereinafter, the "Project"); and
WHEREAS, Developer and City wish to collaborate to execute certain Public Improvements
to the City Property that will enhance the quality of the neighborhood's amenities.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter
contained, the Parties mutually agree and bind themselves as set forth herein:
Section 1. Consideration. The Parties hereby agree that the consideration and obligations
recited and provided for under this Agreement constitute substantial benefits to both Parties and thus
adequate consideration for this Agreement.
Section 2.
provided:
(a)
(b)
Rules of Construction. For all purposes of the Agreement, unless otherwise expressly
A defined term has the meaning ascribed to it;
Words in the singular include the plural, and words in the plural include the singular;
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(c) A pronoun in one gender includes and applies to other genders as well;
(d) The terms "hereunder," "herein," "hereof," "hereto," and such other terms shall refer
to the instant Agreement in its entirety and not to individual sections or articles;
(e) The Parties hereto agree that this Agreement shall not be more strictly construed
against either the City or Owner, as all Parties are drafters of this Agreement; and
(f)
The recitals are true and correct and are incorporated into and made part of this
Agreement. The attached exhibits shall be deemed adopted and incorporated into the
Agreement; provided, however, that this Agreement shall be deemed to control in the
event of any conflict between the attachments and this Agreement.
Section 3. Definitions. Capitalized terms which are not specifically defined herein shall have the
meaning given in Ordinance No. 13114, the Zoning Ordinance of the City of Miami, Florida, as amended
("Miami 21 Code") or the Code of the City of Miami, Florida, as amended ("Code" or "City Code").
"Agreement" means this Agreement between the City and Owner.
"BID" refers to the Coconut Grove Business Improvement District, a semi -autonomous board of
the City.
"City" means the City of Miami, Florida, a municipal corporation and political subdivisions of the
State of Florida, and all departments, agencies, and instrumentalities subject to the jurisdiction thereof.
"City Contribution" shall have the meaning ascribed to this term in Section 11(c) of this
Agreement.
"City Park" means the city park commonly referred to as "Kirk Munroe Park" and identified as
3120 and 3152 Oak Avenue, Miami, Florida (Folio Nos. 01-4121-032-0009 and 01-4121-032-0010) and
comprised of Lots 1, 2, 3, 4, 19, 20, 21, 22, 23, & 24 and Lots 5 & 6, less the North 5 feet for right-of-way of
Block 1, Charles H. Frow Subdivision, as recorded in Plat Book 13, Page 53, Public Records of Miami -Dade
County, Florida
"City Property" means the: (i) the City Park; (ii) the public right-of-way known as "Fuller Street"
located between Main Highway and Grand Avenue; and (iii) portions of the following City rights -of -way
from the center line to the base building line: (a) the eastern portion of the Matilda Street between Grand
and Oak Avenues; (b) the southern portion of Oak Avenue from Matilda Street to the western boundary of
the Park; and (c) the northern portion of Florida Avenue from Matilda Street to the western boundary of
the Park.
"Code" means the City Charter and Code of the City of Miami, Florida, as amended.
"Comprehensive Plan" means the comprehensive plan known as the Miami Comprehensive
Neighborhood Plan, adopted by the City pursuant to Chapter 163, Florida Statutes (2025), meeting the
requirements of Section 163.3177, Florida Statutes (2025), Section 163.3178, Florida Statutes (2025).
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"Developer" means Coconut Grove Condo, LLC a Delaware limited liability company.
"Developer Contribution" shall have the meaning ascribed to this term in Section 11(c) of this
Agreement.
"Development Management Agreement" shall have the meaning ascribed to this term in Section
11(e) of this Agreement.
"DOSP" or "MPA" means the City's Department of Off -Street Parking also known as the Miami
Parking Authority.
"Effective Date" means the date of recordation of this executed Agreement in the public records
of Miami -Dade County, Florida.
"Existing Zoning" means (a) Miami 21 Code; and (b) laws and policies of the City that regulate
any aspect of development and includes any local government zoning, rezoning, subdivision, building
construction, or sign regulations or any other regulations controlling the development of land, including
those provision related to the development of land in Chapters 10, 23, 35, 36, 54, 55, and 62 of the Code, as
amended, through the Effective Date, which together comprise the effective land development regulations
governing the development of the property.
"Fuller Street Improvements" shall have the meaning ascribed to the term in Section 11(b) of this
Agreement.
"Land" means the earth, water, and air, above, below, or on the surface and includes any
improvements or structures customarily regarded as land.
"Laws" means all ordinances, resolutions, regulations, comprehensive plans, development
regulations, and rules adopted by a local government affecting the development of land.
"Owner(s)" means AYME Properties, LLC, a Florida limited liability company (hereinafter,
"AYME"), AYME Florida Avenue Properties, LLC, a Florida limited liability company ("AYME Florida"),
and 3101 Grove Trustee, LLC, a Delaware limited liability company, both individually and collectively.
"Park Budget" shall have the meaning ascribed to this term in Section 12 of this Agreement.
"Park Fund" shall have the meaning ascribed to this term in Section 12 of this Agreement.
"Park Improvements" the term shall have the meaning ascribed to the term in Section 11(a) of the
Agreement.
"Parties" means the Developer and the City, both of whom are signatories to the Agreement.
"Project" shall have the meaning ascribed in the Recitals.
"Property" means the parcels more specifically described in Exhibit A to this Agreement and
which is more commonly referred to as 3101 & 3131 Grand Avenue and 3100, 3104, 3114, 3124, 3150 & 3158
Florida Avenue, all located within the City of Miami, Florida.
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"Public Facilities" means major capital improvements, including, but not limited to,
transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks and recreational,
streets, parking, and health systems and facilities.
"Public Improvements" means the improvements to the City Property, inclusive of the Park
Improvements and Fuller Street Improvements, to be designed and constructed by Developer for the
benefit of the City and jointly financed with contributions from the Parties consistent with the terms set
forth hereinbelow.
"Public Improvements Contribution" means the sum of the City Contribution and the Developer
Contribution.
"Public Improvements Cost Estimate" shall have the meaning ascribed to the term in Section 11(c)
of the Agreement.
"Revised Public Improvements Cost Estimate" shall have the meaning ascribed to the term in
Section 11(c) of this Agreement.
"Term" means the duration of this Agreement which shall commence on the Effective Date and
continue in force for 30 years thereafter, or expiration or termination of the same, consistent with the
authority provided pursuant to s. 163.3229, Florida Statutes (2025).
Section 4. Purpose. The purpose of this Agreement is for the City to authorize Developer to
redevelop the Property pursuant to the terms of the Miami 21 Code and the City Code and enlist the
Developer's assistance with the design, construction and financing of the Public Improvements adjacent to
Owner's property. This Agreement will establish, as of the Effective Date of this Agreement, the land
development regulations that will govern the development of the Property and design, construction and
financing of the Public Improvements, thereby providing the Parties with additional certainty during the
development process.
Section 5. Intent. Developer and City intend for this Agreement to be construed and implemented
so as to effectuate the purpose of the Comprehensive Plan, Existing Zoning, and the Florida Local
Government Development Agreement Act, s. 163.3220 —163.3243, Florida Statutes (2025).
Section 6. Applicability. This Agreement only applies to the Property described in Exhibit A.
Section 7. Term of Agreement, Effective Date and Binding Effect. This Agreement shall be for a
minimum term of thirty (30) years from the Effective Date and shall be recorded in the public records of
Miami -Dade County with a recorded copy filed with the City Clerk. The Term may be extended by mutual
consent of the Parties subject to public hearing(s), pursuant to the authority granted in s. 163.3229, Florida
Statutes (2025), and consistent with the hearing requirements set forth in s. 163.3225, Florida Statutes (2025).
The Agreement shall become effective on the Effective Date and shall constitute a covenant running with
the land that shall be binding upon, and inure to the benefit of, the Parties, their successors, assigns, heirs,
legal representatives, and personal representatives.
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Section 8. Permitted Development Uses and Building Intensities.
(a) Density, Intensity, Uses, and Building Heights.
(1) As of the Effective Date, the intensity, Uses, and Building Heights proposed for the
Project are consistent with the intensities, Uses, and Building Heights permitted by the
Existing Zoning and the Comprehensive Plan.
Nothing herein shall prohibit the Developer from soliciting a change of zoning,
pursuant to the requirements of Article 7 of Miami 21, to increase the density or
intensity of development permitted on the Property, as long as such increase in density
or intensity is consistent with the Comprehensive Plan and the procedures established
in Miami 21 as they exist on the Effective Date.
Nothing herein shall prohibit the Developer from requesting approval of a qualifying
project on the Property pursuant to the Section 166.04151, Florida Statutes (2025) (the
"Live Local Act"), as the same may be amended from time to time.
(b) Environmental. The Developer shall be required to comply with the requirements of
Chapter 17 of the City Code, subject to the modifications set forth herein, by performing tree replacement
within the BID and within the City Park where possible.
Off -site replacement trees. Notwithstanding the requirements of Sec. 17-6.(e), Code,
where replacement within the Property is not reasonably feasible, Developer may
enter into an agreement with the City to perform tree replacement on public property
in the following order of priority: (i) within City Park; (ii) on Fuller Street between
Main Highway and Grand Avenue; (iii) within the boundaries of the BID; (iv) within
one (1) mile of the boundaries of the BID; or (v) within any City -owned park. The City
further agrees to facilitate the permitting and planting of replacement trees on all
publicly -owned property within the aforementioned areas and within City parks.
Should Developer undertake any tree replacement off -site for the Property, it shall
agree to, or make arrangements for the provision, of water, trim, root, prune, brace,
or undertake any other necessary maintenance as may be required for by the
Department of Resilience & Public Works and/or the Division Environmental
Resources for a period of not greater than one hundred eighty (180) days following
installation. Developer shall further warrant every off -site replacement tree for a
period of one (1) year following the date of installation.
Tree installation, maintenance and guarantee. For all trees placed at the Property or its
abutting right-of-way, Developer shall install any needed irrigation and
corresponding water meters required to support the growth of the right-of-way trees.
Developer shall water, trim, root, prune, brace or undertake any other necessary
maintenance as may be required for such trees located within the boundaries of the
BID and shall warrant such trees for a period of one (1) year following installation.
(c) Parking Requirements. The Property is located within the boundaries of "Coconut
Grove Village Center" described in Sec. 35-221, Code, which area is benefited by the Coconut Grove
Parking Trust Fund administered by the Department of Off -Street Parking ("DOSP" or "MPA"). Developer
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intends to avail itself of the use of parking waiver certificates to satisfy, in part, its off-street parking
requirements for the Project. Notwithstanding the language in Sec. 35-221.(e), Code, regarding "food
service establishments," parking requirements for Commercial Uses, including Food Service
Establishments, shall be calculated at such rate set forth in Miami 21. Further, consistent with the express
terms of Sec. 35-224.(4), Code, Developer shall be granted credit for buildings built prior to 1960 demolished
to facilitate the Project. Such credit shall be calculated based on the square footage and existing Use(s) for
the Building(s) being demolished or at the rate of 2 spaces per each existing off-street parking space on the
Property subject to demolition, whichever credit proves greatest.
Section 9. Public Facilities. As of the Effective Date, Developer has conducted an analysis of the
Public Facilities available to serve the Project. In the event that the Existing Zoning and/or the
Comprehensive Plan require Developer to provide Public Facilities to address any deficiencies in required
levels of service occasioned solely by future development on the Property, Developer shall provide such
Public Facilities consistent with the timing requirements of s. 163.3180, Fla. Stat. (2025), or as otherwise
required by Chapter 13, Code, if applicable. Developer shall be bound by the City impact fees and
assessments in existence as of the Effective Date of this Agreement. See Section 11 regarding Public
Improvements.
Section 10. Project Approval.
(a) Future Development Review. Future development on Property shall proceed
pursuant to and in accordance with the processes and standards established in the
Miami 21 Code and the City Code.
(b) Prohibition on Downzoning.
i. The Comprehensive Plan, the Existing Zoning, and this Agreement shall govern
the development of the Property for the duration of this Agreement. The City's
laws and policies adopted after the Effective Date may be applied to the Property
only if the determinations required by s. 163.3233.(2), Florida Statutes (2025),
have been made following a public hearing or as otherwise provided herein.
ii. Pursuant to s. 163.3233.(3), Florida Statutes (2025), this prohibition on
downsizing supplements, rather than supplants, any rights that may vest to
Developer under Florida or Federal law. As a result, Developer may challenge
any subsequently adopted changes to the land development regulations based
on (a) common law principles including, but not limited to equitable estoppel
and vested rights, or (b) statutory rights which may accrue by virtue of Chapter
70, Florida Statutes (2025).
Section 11. Public Improvements. In order to foster an enhanced aesthetic and quality of life
enhancements in the area surrounding the Project, Developer, for it and the City's mutual benefit, has
agreed to assume responsibility for the design and construction of the Public Improvements with said
improvements to be financed with contributions by the City and Developer in accordance with the terms
herein.
(a) City Park Improvements. Developer has proposed a series of enhancements to the
public park, which include, but are not limited to, the following: (i) resurfacing,
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(b)
(c)
(d)
striping, and fencing of public tennis courts; (ii) reconstruction of the hitting wall; (iii)
exterior improvements to the existing tennis center building; (iv) construction of a new
children's play area; (v) construction of new concession building; and (vi)
improvements to public spaces, including: installation and replacement of turf;
installation of wood decking below banyan tree in southeast corner of the park;
landscaping and installation of water features throughout park; and (vii) installation
of decorative perimeter fending (collectively, the "Park Improvements"). Developer's
conceptual plan for the park improvements is attached hereto as Exhibit B. Developer
shall work with resident stakeholders and organizations to finalize a design for the
Kirk Munroe Park portion of Public Improvements, which final design plan shall be
approved by the City Commission.
Fuller Street Improvements. Developer has proposed a series of improvements to the
Fuller Street between Main Highway and Grand Avenue, which include, but are not
limited to, the following: (i) installation of decorative pavers; (ii) landscaping; (iii)
specimen trees; (iv) signage; and (v) other decorative elements. Developer's
conceptual plan for the park improvements is attached hereto as Exhibit C. Developer
shall work with the BID, local business owners, and resident stakeholders to finalize
the design for the Fuller Street portion of the Public Improvements, which final design
shall be approved by both the BID and City Commission.
Financing of Public Improvements. Developer and City have agreed to jointly
underwrite the cost of Public Improvements. The Parties estimate the total cost of the
Public Improvements at Five Million and 00/100 Dollars ($5,000,000.00) (the "Public
Improvements Cost Estimate") with the City contribution of Three Million 00/100
Dollars ($3,000,000.00) (hereinafter, the "City Contribution") and a Two Million and
00/100 Dollars ($2,000,000.00) contribution by the Developer (hereinafter, the
"Developer Contribution") (collectively, the "Public Improvements Contribution").
Following completion of the design and permitting of the Public Improvements,
Developer shall present to City a revised Public Improvements Cost Estimate (the
"Revised Public Improvements Cost Estimate"). Should the Revised Public
Improvements Cost Estimate exceed the Public Improvements Cost Estimate, the
Parties shall underwrite the difference in their proportionate share, which additional
City contribution shall be subject to appropriation of available funds by the City
Commission. In the event the City is unwilling or unable to fund their proportionate
share of the difference between the Revised Public Improvements Cost Estimate and
the Public Improvements Coste Estimate, Developer shall first prioritize the use of the
Public Improvements Contribution towards the completion of the City Park
Improvements. Should the City Commission agree to appropriate its proportionate
share of the difference between the Revised Public Improvements Cost Estimate and
the Public Improvements Cost Estimate, Developer shall agree to underwrite any costs
in excess of the Revised Public Improvements Cost Estimate.
Competitive Solicitations for Design and Construction of Public Improvements.
Pursuant to the terms of Sec. 287.055(2)(b), Florida Statutes (2025), known as the
Competitive Consultants Negotiation Act ("CCNA"), the term "Agency" does not
extend to a non -governmental developer that contributes public facilities to a political
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(e)
(f)
Section 12.
(a)
subdivision under the Florida Local Government Development Agreement Act.
Additionally, in no event shall any portion of the City Contribution be utilized in
connection with the purchase of services contemplated under the CCNA. Accordingly,
design services provided in connection with the design of the Public Improvements
shall not be subject to the CCNA. Any expenditures incurred by the Developer in
connection with the design of the Public Improvements shall be credited against the
total amount of the Developer Contribution.
Further, construction of the Public Improvements by Developer has been authorized
pursuant to the requirements of Sec. 255.20(c)(10), Florida Statutes (2025). Through its
adoption of this Agreement, but subject to the City Commission's adoption of the
concurrent resolution authorizing the Development Management Agreement, as such
term is defined below, with regard to the construction of the Public Improvements, the
City Commission, by a vote of a two-thirds majority, has determined that it is in the
best interest of City award the Project to Developer who has engaged the services of a
licensed contractor to complete the work.
Development Management Agreement. The design and construction of the Public
Improvements shall be governed by the terms of a development management
agreement (the "Development Management Agreement"). Upon the adoption of this
Agreement, the City Manager is authorized to negotiate and execute a Development
Management Agreement consistent with the form attached in Exhibit D and in a final
form acceptable to the City Attorney.
In the event the Public Improvements are not completed at the time Developer applies
for a Certificate of Use for Developer's Project on the Property, Developer shall prior
to the issuance of requested Certificate of Use for the Project provide a cash bond to
the City in an amount equivalent to the unexpended portion of the Developer
Contribution.
Local Development Permits.
Development of the Property in accordance to Miami 21 and Code is contemplated by
Developer. Redevelopment of the Property may require additional permits or
approvals from the City, Miami -Dade County, State or Federal government and any
division thereof. Subject to required legal process and approvals, the City shall make
a good faith effort to take all responsible steps to cooperate with and facilitate all such
approvals. Such approvals include, without limitation, the following approvals and
permits and any successor or analogous approvals and permits;
i. Subdivision plat or waiver of plat approvals;
ii. Covenant, unity of title, or covenant -in -lieu of unity of title acceptance or the
release of existing unities or covenants;
iii. Building permits;
iv. Certificates of use and/or occupancy;
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(b)
v. Stormwater permits; and
vi. Any other official action of the City, Miami -Dade County, or/and other
government agency having the effect of permitting development of the
Property.
In the event the City substantially modifies its land development regulations
regarding site plan approval procedures, authority to approve any plans, buildings, or
development on the Property shall be vested solely in the City Manager, with the
recommendation of the Planning Director or any other relevant party. Any such site
plan shall be approved if it meets the requirements and criteria of the Existing Zoning,
the Comprehensive Plan, and the terms of this Agreement.
Section 13. Necessity of Complying with Local Regulations Relative to Development Permits. The
Parties agree that failure of this Agreement to address a particular permit, condition, fee, term, license, or
restriction in effect on the Effective Date shall not relieve Developer of the necessity of complying with the
regulation governing said permitting requirements, conditions, fees, terms, licenses, or restrictions.
Section 14.
(a)
(b)
(c)
Section 15.
(a)
Reservation of Development Rights.
For the term of this Agreement, the City hereby agrees that it shall permit the
development of the Property in accordance with the Existing Zoning, the
Comprehensive Plan, and this Agreement.
Nothing herein shall prohibit an increase in the density or intensity of development
permitted at the Property in a manner consistent with (i) the Existing Zoning
and/or the Comprehensive Plan; (ii) any zoning change or other entitlement
process subsequently requested or initiated by Developer in accordance with
applicable provisions of law; or (iii) any zoning change subsequently enacted by
the City.
The expiration or termination of this Agreement shall not be considered a waiver
of, or limitation upon, the rights, including, but not limited to, any claims of vested
rights, or equitable estoppel regarding claims arising during the term of this
Agreement; and Developer or its successor or assigns may continue development
of the Property in conformity with all active development permits or development
orders granted by the City.
Annual Review.
This Agreement shall be reviewed by the City once every 12 months, commencing 12
months after the Effective Date during the Term of this Agreement. The Owner, or
Developer, shall submit an annual report to the City not later than 30 days following the
anniversary date of the Agreement. The annual report shall contain a section by
section description of Owner's, or Developer's, compliance with any obligations under
this Agreement.
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(b) Any information required of Developer during an annual review shall be limited to that
necessary to determine the extent to which the Developer is proceeding in good faith to
comply with the terms of this Agreement.
(c) If the City finds on the basis of competent substantial evidence that Developer has not
proceeded in good faith to comply with the terms of the Agreement, the City may
terminate or amend this Agreement after providing thirty (30) days written notice to
the Developer and following a public hearing held before the City Commission.
Section 16. Notices.
(a) All notices, demands and requests which may or are required to be given hereunder
shall, except as otherwise expressly provided, be in writing and delivered by personal
service or sent by United States Registered or Certified Mail, return receipt requested,
postage prepaid, or by overnight express delivery, such as Federal Express, to the
parties at the addresses listed below. Any notice given pursuant to this Agreement
shall be deemed given when received. Any actions required to be taken hereunder
which fall on Saturday, Sunday, or United States legal holidays shall be deemed to be
performed timely when taken on the succeeding day thereafter which shall not be a
Saturday, Sunday or legal holiday.
(b)
To the City:
With a copy to:
To Developer:
City Manager
City of Miami
3500 Pan American Drive
Miami, FL 33133
City Attorney
City of Miami
Miami Riverside Center
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
Planning & Zoning Director
City of Miami
Miami Riverside Center
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
Coconut Grove Condo, LLC
c/o The Allen Morris Company
121 Alhambra Plaza, Ste. 1600
Coral Gables, FL 33134
Any party to this Agreement may change its notification address(es) by providing
written notification to the other party pursuant to the terms and conditions of this
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section.
Section 17. Exclusive Venue, Choice of Law, Specific Performance. It is mutually understood and
agreed by the Parties that this Agreement shall be governed by the laws of the State of Florida, and any
applicable federal law, both as to the interpretation and performance, and that any action at law, suit
in equity or judicial proceedings for the enforcement of this Agreement or any provision hereof shall be
instituted only in the courts of the State of Florida or federal courts and venue for any such actions
shall lie exclusively in a court of competent jurisdiction in Miami -Dade County. In addition to other
legal rights, the Parties shall each have the right to specific performance of this Agreement in court. Each
party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or
pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the
parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any
objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial.
Section 18. Authorization to Withhold Permits and Inspections. In the event the Developer is
obligated to make payments or improvements under the terms of this Agreement or to take or
refrain from taking any other action under this Agreement and such obligations are not performed
prior to the expiration of any applicable notice and/or cure period, in addition to any other remedies
available, the City is hereby authorized to withhold any further permits for the Property and refuse
any inspections or grant any approvals with regard to any portion of the Property until such time this
Agreement is complied with. This remedy shall be in addition to any other remedy provided for in
this Agreement.
Section 19. Voluntary Compliance. The Parties agree that in the event all or any part of this
Agreement is struck down by judicial proceeding or preempted by legislative action, the Parties shall
continue to honor the terms and conditions of this Agreement to the extent allowed by law.
Section 20. No Oral Change or Termination. This Agreement and the exhibits and appendices
appended hereto and incorporated herein by reference, if any, constitute the entire Agreement
between the Parties with respect to the subject matter hereof. This Agreement supersedes any prior
agreements or understandings between the Parties with respect to the subject matter hereof, and no
change, modification, or discharge hereof in whole or in part shall be effective unless such complies
with Florida Statutes and is in writing and signed by the party against whom enforcement of the
change, modification or discharge is sought. This Agreement cannot be changed or terminated orally.
Section 21. Compliance with Applicable Law. Subject to the terms and conditions of this
Agreement, throughout the term of this Agreement, the Parties shall comply with all applicable
federal, state, or local laws, regulations, codes, ordinances, resolutions, administrative orders, permits,
policies and procedures and orders that govern or relate to the respective Party's obligations and
performance under this Agreement, all as they may be amended from time to time.
Section 22. Representations; Representatives. Each party represents to the others that this Agreement
has been duly authorized, delivered and executed by such party and constitutes the legal, valid and binding
obligations of such party, enforceable in accordance with its terms.
Section 23. No Exclusive Remedies. No remedy or lection given by any provision in this Agreement
shall be deemed exclusive unless expressly so indicated. Wherever possible, the remedies granted
hereunder upon a default of the other party shall be cumulative and in addition to all other remedies of
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law or equity arising from such event of default, except where otherwise expressly provided.
Section 24. Failure to Exercise Rights not a Waiver; Waiver Provisions. The failure by either party to
promptly exercise any right arising hereunder shall not constitute a waiver of such right unless otherwise
expressly provided herein. No waiver or breach of any provision of this Agreement shall constitute a
waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective
unless made in writing.
Section 25.
(a)
(b)
(c)
Events of Default.
Developer shall be in default under this Agreement if Developer fails to perform or
breaches any term(s), covenant(s), or condition(s) of this Agreement which is not cured
within thirty (30) days after receipt of written notice from the City specifying the nature
of such breach; provided, however, that if such breach cannot be reasonably cured
within thirty (30) days, then Developer shall not be in default if it commences to cure
such breach within thirty (30) days and diligently prosecutes such cure to completion.
The City shall be in default under this Agreement if the City fails to perform or
breaches any term, covenant, or condition of this Agreement and such failure is not
cured within thirty (30) days after receipt of written notice from Developer specifying
the nature of such breach; provided, however, that if such breach cannot be reasonably
cured within thirty (30) days, then City shall not be in default if it commences to cure
such breach within thirty (30) days and diligently prosecutes such cure to completion.
It shall not be a default under this Agreement if either party is declared bankrupt by a
court of competent jurisdiction. All rights and obligations in this Agreement shall
survive such bankruptcy of either party. The Parties hereby forfeit any right to
terminate this Agreement upon the bankruptcy of the other party.
(d) The default of a successor or assignee of any portion of Developer's rights hereunder
shall not be deemed a breach by Developer.
Section 26. Remedies Upon Default.
(a) Neither party may terminate this Agreement upon the default of the other party,
except as provided otherwise in this Agreement, including but not limited to in Section
16(c) of this Agreement, but shall have all of the remedies enumerated herein.
(b)
Upon the occurrence of a default by a party to this Agreement not cured within the
applicable grace period, Developer and the City agree that any party may seek specific
performance of this Agreement, and that seeking specific performance shall not waive
any right of such party to also seek monetary damages, injunctive relief, or any other
relief other than termination of this Agreement.
Section 27. Severability. If any term or provision of this Agreement or the application thereof, shall to
any extent, hereafter be determined to be invalid or unenforceable, the remainder of this Agreement or the
application other than those as to which it is held invalid or unenforceable shall not be affected thereby and
shall continue in full force and effect.
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Section 28. Assignment & Transfer. This Agreement shall be binding on Developer and its heirs,
successors and assigns, including the successor to or assignee of any Property interest. Developer, in its sole
discretion, may assign, in whole or in part, this Agreement or any of its rights and obligations hereunder, or
may extend the benefits of this Agreement, to any holder of a property interest without the prior written
consent of, or any other approval of, the City. Notice of any assignment or transfer shall be provided to the
City in accordance with the requirements of Section 17. Any such assignee shall, be in writing in a form
acceptable to the City Attorney, assume all applicable rights and obligations under this Agreement, and
upon such assumption, the assigning party shall be released from all obligations assumed by such assignee.
Section 29. Obligations Surviving Termination Hereof. Notwithstanding and prevailing over any
term or provision to the contrary contained herein, in the event of any lawful termination of this Agreement,
the following obligations shall survive such termination and continue in full force and effect until the
expiration of a one-year term following the earlier of the effective date of such termination or the expiration
of the Term: (i) the exclusive venue and choice of law provisions contained herein; (ii) rights of any party
arising during or attributable to the period prior to expiration or earlier termination of this Agreement; (iii)
the indemnification provision; and (iv) any other term or provision herein which expressly indicates either
that it survives the termination or expiration hereof or is or may be applicable or effective beyond the
expiration or permitted early termination hereof.
Section 30. Lack of Agency Relationship. Nothing contained herein shall be construed as establishing
an agency relationship between the City and Developer and neither Developer or its employees, agents,
contractors, subsidiaries, divisions, affiliates, or guests shall be deemed agents, instrumentalities,
employees, or contractors of the City for any purpose hereunder, and the City, its contractors, agents, and
employees shall not be deemed contractors, agents, or employees of Developer or their subsidiaries,
divisions, or affiliates.
Section 31.
(a)
(b)
Cooperation; Expedited Permitting; Time of the Essence.
The Parties agree to cooperate with each other to the full extent practicable pursuant to the
terms and conditions of this Agreement. The Parties agree that time is of the essence in
all aspects of their respective and mutual responsibilities pursuant to this Agreement.
The City shall reasonably cooperate to expedite the permitting and approvals in an effort
to assist Developer in achieving its development and construction milestones. The City
will accommodate requests from Developer's general contractor and subcontractors for
review of phased or multiple permitting packages, such as those for excavation, site
work and foundations, building shell, core, and interiors. In addition, the City will
designate an individual within the City Manager's office who will have a primary
(though not exclusive) duty to serve as the City's point of contact and liaison with
Developer in order to expedite the processing and issuance of all permit and license
applications and approvals across the various departments and offices of the City which
have the authority or right to review and approve all applications for such permits and
licenses.
Notwithstanding the foregoing, the City shall not be obligated to issue development
permits to the extent that Developer does not comply with the applicable requirements
of the Existing Zoning, the Comprehensive Plan, this Agreement, and the applicable
building codes or regulations.
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Section 32. Enforcement.
(a)
(b)
If Developer, or its successors or assigns, fails to act in accordance with the terms of the
Existing Zoning or this Agreement, the City shall seek enforcement of said violation
upon the subject Property.
Enforcement of this Agreement shall be by action against any parties or persons
violating, or attempting to violate, any covenants set forth in this Agreement. Each Party
shall bear their own attorneys' fees and costs.
(c) This enforcement provisions shall be in addition to any other remedies available at law,
in equity or both.
Section 33. Amendment or Termination by Mutual Consent. This Agreement may not be amended or
terminated during its term except by mutual, written agreement of Developer and the City, except as
provided otherwise in this Agreement, including but not limited to Section 16(c). Prior to any amendment
or termination of this Agreement during its term, the City shall hold two (2) public hearings to consider
and deliberate such amendment or termination.
Section 34. Third Party Defense. Developer agrees to indemnify and defend the City from and against
any and all claims, suits, appeals, demand, liabilities, and causes of action of any nature by or on behalf of
any person, firm or corporation, against the City relating to or arising from this Agreement or relating to
or arising from any Development on the Property pursuant to this Agreement and from and against all
costs, fees, expenses, liabilities, any orders, judgments, or decrees which may be entered and from and
against all costs for attorneys fees, expenses, and liabilities incurred in the defense of such claim or in the
investigation thereof. This includes, without limitation, a (i) consistency challenge pursuant to s. 163.3215,
Florida Statutes (2025); (ii) petition for writ of certiorari; (iii) an action for declaratory judgment; or (iv) any
claims for loss, damage, liability, or expense (including reasonable attorneys' fees). In the event that any
action or proceeding is brought against the City by reason of a claim, Developer, upon notice from the City,
shall, at its expense, defend the action or proceeding by counsel chosen by the City and approved by the
Developer, including the City Attorney's office or outside counsel. The City retains the right to make all
decisions with respect to its representations in any legal proceeding, including its inherent right to abandon
or settle litigation.
Section 35. No Conflict of Interest. Developer agrees to comply with Section 2-612, Code, as of the
Effective Date, with respect to conflicts of interest.
Section 36. No Third -Party Beneficiary. No persons or entities other than Developer and the City,
their heirs, successors and assigns, shall have any rights whatsoever under this Agreement.
Section 37. Counterparts. This Agreement may be executed in two (2) or more counterparts, 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.
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NOW, WHEREOF, the City and the Developer have caused this Agreement to be duly executed.
[Signature Pages to Follow]
IN WITNESS hereof the parties have cause this Agreement to be duly entered into and signed as
of the date written above.
Witnesses:
Print Name:
Print Name:
STATE OF FLORIDA
MIAMI-DADE COUNTY
COCONUT GROVE CONDO, LLC, a Delaware limited
liability company
By:
Print Name: Yazmin Gil
Title: Manager
The foregoing instrument was acknowledged before me this day of ,
by Yazmin Gil, as Manager of Coconut Grove Condo, LLC, a Delaware limited liability company, who is
personally known to me or who produced as identification.
My commission expires:
isi
NOTARY PUBLIC, State of Florida
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IN WITNESS hereof the parties have caused this Agreement to be duly entered into and signed as
of the date written above.
ATTEST:
Todd Hannon, City Clerk
APPROVED BY THE PLANNING
DEPARTMENTAS TO CONTENT:
David Snow, Planning Director
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
George K. Wysong III, City Attorney so
CITY OF MIAMI, a municipal corporation
located within the State of Florida
By:
Print Name: Arthur Noriega, V
Title: City Manager
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OWNER JOINDER
AYME PROPERTIES, LLC, a Florida limited liability company, whose mailing address is 8325 SW
54th Avenue, Miami, FL 33143 ("Owner"), which is the owner of the following described property(ies) (the
"AYME Properties"):
Tracts "A" and "B" of HAAS PROPERTIES, according to the Plat thereof, recorded in Plat Book
51, at Page 65 of the Public Records of Miami -Dade County, Florida.
Also known as: 3101 & 3131 Grand Avenue, Miami, FL (Folio No. 01-4121-030-0020 & 01-4121-
030-0010)
Hereby agrees to join in the Agreement.
WITNESSES:
Printed Name:
Printed Name:
The foregoing instrument
, as Manager
company, who is personally known
OWNER:
AYME PROPERTIES, LLC, a Florida limited
company
By: Cristina Espinosa
Its: Manager Member
was acknowledged before me this day of , 2025, by
Member of AYME PROPERTIES, LLC, a Florida limited liability
to me, or has produced as identification.
17
Printed Name:
Notary Public
My Commission Expires:
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OWNER JOINDER
AYME FLORIDA AVENUE PROPERTIES, LLC, a Florida limited liability company, whose
mailing address is 8325 SW 54th Avenue, Miami, FL 33143 ("Owner"), which is the owner of the following
described property(ies)(the "AYME Florida"):
Lot 2, 3, 4, 5 & 6, Block 2 of CHARLES H. FROW SUBDIVISION, according to the Plat
thereof, as recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County,
Florida.
Also known as: 3104, 3114, 3124, 3150 & 3158 Florida Avenue (Folio No. 01-4121-032-0120,
01-4121-032-0130, 01-4121-032-0140, 01-4121-032-0150 & 01-4121-032-0160)
Hereby agrees to join in the Agreement.
WITNESSES: OWNER:
AYME FLORIDA AVENUE PROPERTIES,
LLC, a Florida limited company
Printed Name:
By: Cristina Espinosa
Its: Manager Member
Printed Name:
The foregoing instrument was acknowledged before me this day of , 2025, by
, as Manager Member of AYME FLORIDA AVENUE PROPERTIES, LLC, a Florida
limited liability company, who is personally known to me, or has produced as
identification.
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Printed Name:
Notary Public
My Commission Expires:
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OWNER JOINDER
3101 GROVE TRUSTEE, LLC, a Delaware limited liability company, whose mailing address is 121
Alhambra Plaza, PH1, Coral Gables, Florida 33134 ("Owner"), which is the owner of the following
described property(ies)(the "Company"):
Lot 1, Block 2 of CHARLES H. FROW SUBDIVISION, according to the Plat thereof, as
recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County, Florida.
Less the East five (5) feet and North five (5) feet of Lot 1, Block 2, according to the Plat
thereof, as recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County,
Florida, as conveyed by Warranty Deed recorded in Deed Book 3791, Page 226, re -recorded
in Official Records Book 5018, Page 116, of the Public Records of Miami -Dade County,
Florida.
Also known as: 3100 Florida Avenue (Folio No. 01-4121-032-0118)
Hereby agrees to join in the Agreement.
WITNESSES: OWNER:
Printed Name:
Printed Name:
3101 GROVE TRUSTEE, LLC, a Delaware
limited company
By: Yazmin Gil
Its: Authorized Representative
The foregoing instrument was acknowledged before me this day of 2025, by Yazmin
Gil, as Authorized Representative of 3101 GROVE TRUSTEE, LLC, a Florida limited liability company,
who is personally known to me, or has produced as identification.
Printed Name:
Notary Public
My Commission Expires:
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EXHIBIT A
OWNERS PRO
PERTY
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Address: 3101 Grand Avenue, Miami, FL
Folio No.: 01-4121-030-0020
Owner: AYME Properties, LLC
Legal Description: Tract "B" of HAAS PROPERTIES, according to the Plat thereof, recorded in Plat
Book 51, at Page 65 of the Public Records of Miami -Dade County, Florida.
Address: 3101 Grand Avenue, Miami, FL
Folio No.: 01-4121-030-0010
Owner: AYME Properties, LLC
Legal Description: Tract "A" of HAAS PROPERTIES, according to the Plat thereof, recorded in Plat
Book 51, at Page 65 of the Public Records of Miami -Dade County, Florida.
Address: 3100 Florida Avenue, Miami, FL
Folio No.: 01-4121-032-0118
Owner: 3101 Grove Trustee, LLC
Legal Description:
Lot 1, Block 2 of CHARLES H. FROW SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County,
Florida.
LESS the East five (5) feet and North five (5) feet of Lot 1, Block 2, according to the
Plat thereof, as recorded in Plat Book 13, Page 53 of the Public Records of Miami -
Dade County, Florida, as conveyed by Warranty Deed recorded in Deed Book
3791, Page 226, re -recorded in Official Records Book 5018, Page 116 of the Public
Records of Miami -Dade County, Florida.
Address: 3104 Florida Avenue, Miami, FL
Folio No.: 01-4121-032-0120
Owner: AYME Florida Avenue Properties, LLC
Legal Description:
Lot 2, Block 2 of CHARLES H. FROW SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County,
Florida.
Address: 3114 Florida Avenue, Miami, FL
Folio No.: 01-4121-032-0130
Owner: AYME Florida Avenue Properties, LLC
Legal Description:
Lot 3, Block 2 of CHARLES H. FROW SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County,
Florida.
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Address: 3124 Florida Avenue, Miami, FL
Folio No.: 01-4121-032-0140
Owner: AYME Florida Avenue Properties, LLC
Legal Description: Lot 4, Block 2 of CHARLES H. FROW SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County,
Florida.
Address: 3150 Florida Avenue, Miami, FL
Folio No.: 01-4121-032-0150
Owner: AYME Florida Avenue Properties, LLC
Legal Description: Lot 5, Block 2 of CHARLES H. FROW SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County,
Florida.
Address: 3158 Florida Avenue, Miami, FL
Folio No.: 01-4121-032-0160
Owner: AYME Florida Avenue Properties, LLC
Legal Description:
Lot 6, Block 2 of CHARLES H. FROW SUBDIVISION, according to the Plat thereof,
as recorded in Plat Book 13, Page 53 of the Public Records of Miami -Dade County,
Florida.
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11
EXHIBIT B
CONCEPTUAL PARK PLANS
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CONCEPTUAL FUL
EXHIBIT C
iit
LER STREET IMPROVEMENTS
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DEVELOPMENT
EXHIBIT D
si.
MANAGEMENT AGREEMENT
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THIS DEVELOPMENT MANAGEMENT AGREEMENT (hereinafter, the "Agreement"), made
and entered into this _ day of , 2025 by and between the CITY OF MIAMI, FLORIDA, a Florida
municipal corporation (hereinafter, the "City"), and COCONUT GROVE CONDO, LLC, a Delaware
limited liability company doing business in the State of Florida, (hereinafter, "Development Manager" or
"AMCO").
WITNESSETH:
WHEREAS, the City desires to enter into an Agreement for the enhancements to portions of Kirk
Munroe Park and portions of the public rights -of -way along Grand and Oak Avenues and Matilda and
Fuller Streets located in the Coconut Grove neighborhood (the "Project"), and
WHEREAS, Development Manager is the sponsor of a mixed -use condominium project,
comprised of retail, office and residential condominium uses, located on an assemblage bounded by Grand
Avenue to the South, Oak Avenue to the North, and Matilda Street to the East, and immediately South of
Kirk Munroe Park (the "AMCO Grove Project"), which Development Manager intends to construct
concurrently with the Project; and
WHEREAS, Development Manager represents that it possesses the requisite expertise and desires
to enter into an Agreement to act as the development manager to provide the services as set forth herein;
and
WHEREAS, this Agreement serves a municipal purpose and primarily effectuates a public
purpose furthering the general health, safety and welfare of the City as it enhances, improves and
embellishes the public infrastructure and rights -of -way, and thoroughfares in the "Coconut Grove" area of
the City which has undergone a recent renaissance and become one of South Florida's premiere "Live,
Work, Play" communities for both residents and visitors alike; and
WHEREAS, pursuant to Resolution No. - passed on , 202_, the City
Commission allocated the required $3,000,000.00 (the "City Contribution") match to secure the match
offered by the Development Manager in the amount of $2,000,000.00 (the "Development Manager
Contribution"); and
WHEREAS, this Agreement implements the expenditure of a sum not to exceed the amount of the
City Contribution to be expended solely on work comprising part of the Project which money is a not a
charge against the general funds or accounts of the City but is limited to the amount of the City
Contribution as a match to Development Manager Contribution, which Development Manager
Contribution is contingent upon the City's provision of the City Contribution, which funding has been
allocated solely from the City's Capital Improvements Program ("CIP") No. B- to
underwrite the costs of the Project within the Coconut Grove district; and
WHEREAS, Development Manager has agreed to retain a qualified general contractor
("Contractor") to perform the scope of work comprising the Project, as described herein below, within the
available funds and cover the costs of any funding shortfalls to complete the desired improvements; and
WHEREAS, the City Commission has authorized the City Manager to execute and enter into this
Agreement by its adoption of Resolution No. 25- on , 2025;
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NOW THEREFORE, in consideration of the mutual covenants set forth herein the City and
Development Manager, agree as follows:
SECTION 1- TERMS AND CONDITIONS
1. INCORPORATION BY REFERENCE; OVERVIEW
The foregoing recitals, the Exhibits to this Agreement, and the prior Agreements, ordinances and
resolutions referenced in this Agreement are all deemed as being incorporated by reference herein as if set
forth in full in this Section of the Agreement. This Agreement covers the services of Development Manager
for the design, permitting, construction, and installation of improvements to: (i) the City -owned park
located at 3120 and 3152 Oak Avenue, Miami, Florida 33133 ("Kirk Munroe Park"); (ii) portions of Grand
Avenue, Oak Avenue, and Matilda Street adjoining the AMCO Grove Project; and (iii) the portions of Fuller
Street located between Grand Avenue and Main Highway (the "Project"). The Work under this Agreement
will be solely performed over areas which are owned by a public agency (e.g. City, County or State). No
work under this Agreement will be performed on privately owned property. A conceptual description and
depiction of the Project is more fully described in the plans and specifications included in Attachment "A"
(the "Conceptual Project Plans"). The Development Manager, through an Architect/Engineer retained by
the Development Manager, shall develop and permit final design plans for the improvements comprising
the Project which are consistent with the Conceptual Project Plans (the "Project Plans"). The Project Plans
shall be approved by the City Manager, which approval shall not be unreasonably withheld, conditioned
or delayed.
2. INTENTION OF CITY
It is the intent of City to have the Project constructed in accordance with the Conceptual Project
Plans and in accordance with all codes and regulations governing construction of the Project. Any work,
materials or equipment that may reasonably be inferred from the Project Plans as being required to produce
the intended result shall be supplied by Development Manager, through its Contractor, whether or not
specifically called for. When words, which have a well-known technical or trade meaning, are used to
describe work, materials or equipment, such words shall be interpreted in accordance with that meaning.
Reference to standard specifications, manuals, or codes of any technical society, organization or association,
or to the laws or regulations of any governmental authority, whether such reference be specific or by
implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at
the time of contract approval and Development Manager shall require that Contractor comply therewith.
City shall have no duties other than those duties and obligations expressly set forth herein.
3. DEFINITIONS
i. "AMCO Grove Project" refers to the a mixed -use office and residential condominium project
proposed to be developed on an land assemblage totaling approximately 1.66 acres +/-
bounded by Grand Avenue on the South, Matilda Street on the East, and Florida Avenue on
the North totaling and having a principal address of 3101 Grand Avenue, Miami, Florida.
ii. "Architect/Engineer" means the Architectural and/or Engineering firm(s) retained by the
Development Manager for the preparation of the Project Plans in connection with the Project.
Development Manager's selection of any of the following architectural or engineering firm
shall be deemed approved by the City: La Casona Gardens Designs Corp.; Naturalficial, Inc.;
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Oppenheim Architecture & Design, LLC; Arquitectonica; Arquitectonica GEO Corporation;
Raymond Jungles, Inc.; Langan Engineering, Environmental, Surveying & Landscape
Architecture, Design Professional Corporation; and Kimley Horn & Associates, Inc. The
Architectural and/or Engineering firms are referred to herein as the "A/E." Any selection of
an A/E firm not listed hereinabove shall be approved by the City Manager.
iii. "City" means the City of Miami, Florida, a Florida municipal corporation. In all respects
hereunder, City's performance is pursuant to the City's capacity as owner of the Project. In the
event the City exercises its regulatory authority as a governmental body, the exercise of such
regulatory authority and the enforcement of any rules, regulations, codes, laws and ordinances
shall be deemed to have occurred pursuant to City's authority as a governmental body and
shall not be attributable in any manner to the City as a party to this Agreement. For the
purposes of this Agreement, "City" without modification shall mean the City Manager or
Director, as applicable. N
iv. "City Commission" means the legislative body of the City of Miami.
v. "City Contribution" means the Three Million and No/100 Dollars ($3,000,000.00) contribution
provided by the City or agency of the City to underwrite a portion of the Project Cost.
vi. "City Manager" means the duly appointed chief administrative officer of the City of Miami.
vii. "Development Manager Contribution" means the Two Million and No/100 Dollar
($2,000,000.00) contribution provided by the Development Manager to underwrite a portion of
the Project Cost.
viii. "Conceptual Project Plans" means the preliminary design plans for the Project attached and
made part of the Agreement and included in Exhibit A.
ix. "Construction Change Directive" means a written directive to effect changes to the Project,
prepared by the A/E and or Development Manager and executed by the City.
x. "Contract Documents" means this the documents described in Section 1, Article 7 of this
Agreement.
xi. "Contractor" means the entity responsible, pursuant to its Construction Agreement with
Development Manager or its related companies for performing the Construction Work and
who is licensed, bonded, and insured to perform this Project in accordance with the terms of
the Agreement(s) between the Development Manager or its affiliates and the Contractor. The
Contractor under this Agreement shall be a licensed general contractor selected by the
Development Manager. Development Manager intends to enlist the services of one of the
following firms: (i) Coastal Construction Group of South Florida, Inc.; (ii) Brasfield & Gorrie,
LLC; (iii) Juneau Construction Company, LLC; and (iv) VPI Builders;/ Veitia Padron Inc..
Selection of any of the aforementioned Contractors by Development Manager shall be deemed
approved by the City. Selection of any Contractor other than those listed hereinabove shall be
approved by the City Manager, which approval shall not be unreasonably withheld,
conditioned or delayed. The Contractor's means and methods of construction shall be
performed by it under applicable laws, rules, regulations, codes and construction practices.
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xii. "Construction Work" means all of the construction elements of the Project required by this
Agreement.
xiii. "Contract Time" means the time period defined in this Agreement for the Development
Manager to complete the Project.
xiv. "Cure" means the action taken by the Development Manager, either directly or through its
Contractor, promptly after receipt of written notice from the City of a breach of the Agreement
for the Project, which shall be performed at no cost to the City, to repair, replace, correct, or
remedy all material, equipment, or other elements of the Project or the Agreement affected by
such breach, or to otherwise make good and eliminate such breach, including, without
limitation, repairing, replacing or correcting any portion of the Project site disturbed in
performing such cure.
xv. "Cure Period" means the period of time in which the Development Manager is required to
remedy deficiencies in the Work or compliance with the Contract Documents after receipt of
written notice to Cure from the City identifying the deficiencies and the time to Cure.
xvi. "Design Documents" means the construction plans and specification prepared by A/E(s) for
this Project under separate agreement(s) with the Development Manager or Contractor, as
applicable.
xvii. "Development Manager" is the entity who provides development services for the City as
Owner for the Design and Construction Phases of this Project covered by this Agreement. The
Development Manager possesses the requisite training and experience to make decisions on
behalf of the Owner and give advice on the time and cost consequences of design and
construction decisions, scheduling, cost control, coordination of contract negotiations and
awards, timely purchasing of critical materials and long -lead items, and coordination of
development activities. The Development Manager under this Agreement is Coconut Grove
Condo, LLC. The Development Manager is responsible for supervising and directing the
Contractor for the work funded by this Agreement. Development Project Manager means the
person designated by Development Manager as its lead representative to the City. The person
is an agent of the Development Manager and his or her actions bind the Development
Manager. The Development Manager shall have the authority to obligate and bind
Development Manager and to act on all matters on behalf of Development Manager except for
revisions to the Contract Documents. The Development Manager shall mean Coconut Grove
Condo, LLC. The failure of the Contractor, any Sub -Contractor, or any other third party to
perform their obligations under agreements with the Development Manager or its affiliates,
whether related to the Construction Work or otherwise connected to the Project, shall not
relieve the Development Manager of its obligations set forth herein, including, without
limitation, those obligations intended to be fulfilled through the services of such Contractor,
Sub -Contractor, or third party.
xviii. "Director" means the Director of the Office of Capital Improvements or his/her designee, who
has the authority and responsibility for managing the Project under this Agreement.
xix. "Drawings" means the graphic and pictorial portions of the Project Plans, which show the
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design, location and dimensions of the Construction Work to be performed, including, without
limitation, all notes, schedules and legends on such Drawings as prepared by the A/E(s) in
Attachment "A".
xx. "Excusable Delay" means any delay in the performance of the Work that is beyond the
reasonable control of the Development Manager, which materially affects the progress of the
Work, and which is not attributable to the fault, negligence, or breach of the Development
Manager or its subcontractors. Excusable Delays include, but are not limited to: (i) differing
site conditions or concealed physical conditions not reasonably foreseeable; (ii) unreasonable
delay in the receipt of necessary permits, approvals, or inspections caused by governmental
authorities (other than delays resulting from Development Manager's noncompliance or
failure to timely submit required applications); and (iii) City -directed changes, suspensions, or
delays in the Work; (iv) delay in City's delivery of information that City is obligated to provide.
For clarity, Excusable Delays shall not include a Force Majeure Event.
xxi. "Field Directive" means a written approval for the Development Manager to proceed with
Work requested by the City or the A/E(s), which is minor in nature and should not involve
additional cost.
xxii. "Final Completion" means the date subsequent to the date of Substantial Completion at which
time the Development Manager, through its Contractor, has completed all the Project in
accordance with the Agreement as certified by the A/E or the City and submitted all
documentation required by the Agreement.
xxiii. "Final Design Plans" means the design plans for the Project developed by the A/E for the
Development Manager and approved by the City.
xxiv. "Force Majeure Event" means any event or circumstances beyond the reasonable control of
the Development Manager or its subcontractors that prevents, delays, or materially delays
impairs the performance of the Work under this Agreement, provided such event could not
reasonably have been anticipated or avoided. Force Majeure Events include, but are not
limited to: (i) Acts of God, such as earthquakes, floods, hurricanes, tornadoes, lightning, or
other natural disasters; (ii) epidemics, pandemics, or public health emergencies (including
governmental restrictions arising therefrom); (iii) acts of war, terrorism, civil commotion, or
insurrection; (iv) unforeseen governmental actions, embargoes, orders, or changes in law or
regulations; (v) strikes, lockouts, or other labor disputes not limited to Development Manager's
own employees; and (vi) widespread shortages or unavailability of materials, equipment,
energy, or transportation services due to causes beyond the Development Manager's control.
For clarity, Force Majeure Events shall not include normal adverse weather conditions, delays
caused solely by the negligence or fault of the Development Manager, or financial difficulties.
xxv. "Guaranteed Maximum Cost" means the sum established in this Agreement and related
documents as the maximum cost to the City for performance of all work pursuant to the terms
of this Agreement. The guaranteed maximum cost of the Project is $5,000,000.00, which consists
of the City Contribution referenced in the Whereas clauses and the Development Manager
Contribution. The City shall not be liable for any reimbursable expenditure, cost, fee, charge,
damage, expense, assessment or imposition relative to or arising by virtue of this Agreement
beyond the amount of the City Contribution comprising its portion of the Guaranteed
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Maximum Cost ("GMC"), which shall be the maximum cost to the City for performance of the
Project. The City acknowledges that it may cost more to complete the Project. However, any
excess cost over the GMC and not included in an approved Change Order or Construction
Change Directive ("CCD") shall be paid for by the Development Manager or others.
xxvi. "Notice To Proceed" means a written letter or directive issued by the Director or City's Project
Manager acknowledging that all conditions precedent have been met and directing that the
Development Manager, through its Contractor, may begin the Project or a specific task of the
Project.
xxvii. "Project" means the design, permitting, and installation of improvements to: (i) Kirk Munroe
Park; (ii) portions of Grand Avenue, Matilda Street, and Florida Avenue adjoining the Coconut
Grove Condo Project; and (iii) the portions of Fuller Street located between Grand Avenue and
Main Highway specified in this Agreement as contemplated and budgeted by the City.
xxviii. "Project Cost" means the total cost of the Work, which amount is estimated at Five Million and
No/100 Dollars ($5,000,000.00).
xxix. "Project Manager" means an employee or representative of the City assigned by the Director
to monitor the Project to be performed under this Agreement and the design and construction
of the Project which has not been delegated to the Development Manager. Notwithstanding
any language contained herein to the contrary, in no event shall the City's Project Manager
have any authority to modify the terms of this Agreement or otherwise waive the obligations
of the Development Manager as set forth herein.
xxx. "Project Plans" means the Final Design Plans and permitted plans for the improvements
comprising the Project.
xxxi. "Punch List" means a compilation of items of Construction Work required to be performed
by, or through the Development Manager prior to or after the Substantial Completion
inspection and prior to Final Completion and payment.
xxxii. "Record Set" means the copy of the Drawings, Specifications, and other modifications of the
Agreement to be maintained at the Project site by the Contractor, in good order and marked
currently to record changes and shall include additions, revisions, modifications, change
orders, approved substitutions, shop drawings and accurate dimensioned locations for items
recorded, including but not limited to, all underground utilities.
xxxiii. "Request For Information (RFI)" means a request from the Contractor seeking an
interpretation or clarification by the A/E(s) relative to the Agreement and/or the Drawings. The
RFI, which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or
item(s) requiring clarification or interpretation and why the response is needed. The RFI must
forth the Contractor's interpretation or understanding of the document(s) in question, along
with the reason for such understanding.
xxxiv. "Risk Administrator" means the City's Risk Management Administrator, or designee, or the
individual named by the City Manager to administer matters relating to insurance and risk of
loss for the City.
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xxxv. "Schedule of Values" means a written schedule setting forth the detailed and itemized cost
breakdown, inclusive of labor, material, and taxes of all elements of the Project. The schedule
(attached) shall be used to bill against monthly based on a percentage of completion.
xxxvi. "Specifications" as used herein means the portion of the Contract Documents which are the
written requirements for the materials, equipment, systems, standards and workmanship for
completion of the Project and performance of related services.
xxxvii. "Sub-Contractor(s)" means a person or entity other than material person or laborer that has a
direct contract with the Contractor to perform or supply a portion of the Construction Work.
xxxviii. "Submittals" mean documents prepared by the Development Manager, Contactor or those
working on their behalf to show a particular aspect of the Construction Work is to be fabricated
and installed. Such submittals include shop drawings, product data, samples, mark-ups, test
results, warranties, maintenance agreements, Project photographs, record documents, field
measurement data, operating and maintenance manuals, reports, certifications and any other
information described in the Agreement.
xxxix. "Substantial Completion" means that point at which the Construction Work is at a level of
completion in substantial compliance with the Agreement such that the City and members of
the general public can use, occupy, and/or operate the facility in all respects to its intended
purpose. Substantial Compliance shall not be deemed to have occurred until any and all
governmental entities, which regulate or have jurisdiction over the Project, have inspected, and
approved the Project.
xl. "Work" as used herein refers to all pre -construction, construction and other services required
by the Contract Documents, including all labor, materials, equipment, procurement and
services needed to complete the Project.
4. SCOPE OF WORK
Development Manager, either itself or through its Contractor, shall provide all management,
supervision, manpower, equipment, tools, and all other necessary goods and services for the Project as
detailed in the attached specifications, drawings and plans as contained in Attachment "A," and in
accordance with the Contract Documents.
5. FINAL DESIGN PLAN DEVELOPMENT
It is the express intent of the City and Development Manager that the Final Design Plan be
developed in consultation with neighborhood stakeholders. The City and Development Manager shall
meet with such neighborhood stakeholders identified by the District 2 City Commissioner, including, but
not limited to, the Coconut Grove Business Improvement District, the Parent-Teacher Association for
Coconut Grove Elementary School, and business and property owners abutting the portions of the right-
of-way comprising part of the Project, to discuss the various elements of the Project and solicit their
preferences/feedback. The Final Design Plan shall be presented to the City Commission for approval not
later than 180 days following execution of this Agreement, unless that date is further extended at the sole
discretion of the City Manager upon written request for such an extension from the Development Manager
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or District 2 City Commissioner.
6. CONTRACT VALUE AND PROJECT COST
The Development Manager shall comply with the terms of this Agreement for no compensation.
Payments shall be made for elements of the Project performed and accepted by the City. Total cost to
complete the Project is estimated equal to the Project Cost. The Development Manager shall cover or ensure
that others cover any and all cost overruns necessary to complete the Project in excess of the City
Contribution.
6. TIME IS OF THE ESSENCE; TIME FOR COMPLETION; TERM
Time is of the essence in the performance of this Agreement. Development Manager, either itself
or through its Contractor, will promptly perform its duties under the Contract Documents and will give
the completion of the Project as much priority as is necessary to cause the Project to be completed in a
timely basis in accordance with the Contract Documents.
Development Manager shall ensure that all elements of the Project under this Agreement are
substantially completed, as evidenced by certificate of occupancy or completion for the by not later than
seven (7) years from the date of City Commission approval on , 202_ ("Completion Date").
The term of this Agreement shall extend one (1) year past the Completion Date.
7. CONTRACT DOCUMENTS
The Contract Documents shall consist of this Agreement, and to the extent duly approved, the
Drawings and Specifications, approved written interpretations and clarifications, Field Directives,
Construction Change Directives, and any modifications. Any modification to this Agreement shall only be
effective if it is reduced to writing, and duly executed by both parties, except a Field Directive or
Constructive Change Directive shall be effective after approval and execution by Director or designee. The
general intent of the Contract Documents is to include all items necessary for the proper execution and
completion of the Project by the Development Manager and its Contractor.
8. PRIORITY OF PROVISIONS
If there is a conflict or inconsistency between any term, statement requirement, or provision of any
exhibit attached hereto, any document or events referred to herein, or any document incorporated into this
Agreement by reference and a term, statement, requirement, the specifications and plans prepared by the
A/E, or provision of this Agreement the following order of precedence shall apply:
In the event of conflicts in the Contract Documents the priorities stated below shall govern:
• Approved revisions to the Contract Documents shall govern over the Contract Documents
• No section of the specifications or plans shall govern over the Contract Terms and
Conditions
Project Plans and Specifications shall govern over plans and drawings. In the event of conflicts
with the plans the priorities stated below shall govern:
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• Schedules, when identified as such shall govern over all other portions of the plans
• Specific notes shall govern over all other notes, and all other portions of the plans, unless
specifically stated otherwise
• Larger scale drawings shall govern over smaller scale drawings
• Figured or numerical dimensions shall govern over dimensions obtained by scaling
• Where provisions of codes, manufacturer's specifications or industry standards are in
conflict, the more restrictive or higher quality shall govern
In the event of omissions in the Contract Documents that are incidental detail(s) of construction or
construction system(s) or with regard to the manner of combining or installing equipment, parts, or
materials, such detail shall be deemed to be an implied requirement of the Contract Documents. The quality
and quantity of the equipment, material, or part so furnished shall conform to trade standards and be
compatible with the type, composition, strengths, size and profile of the equipment, materials or parts
otherwise specified in the Contract Documents.
9. PAYMENT REQUESTS
Development Manager may make application for payment for Construction Work completed
during the Project at intervals of not more than once a -month (the "Application for Payment").
Development Manager's Application for Payment shall be accompanied by a conditional partial release of
liens relative to the Construction Work, which is the subject of the Application for Payment and any other
information reasonably required by the City. Each Application for Payment shall be submitted in triplicate
to City's Project Manager for approval.
City may withhold, in whole or in part, payment to such extent as may be necessary to protect
itself from loss on account of:
• Defective Construction Work not remedied.
• Claims filed by other parties against Development Manager, Contractor or City because of
Development Manager and/or Contractor's negligent performance of the Work.
• Failure of Development Manager to make payments properly to its Contractor or Sub -
Contractors or for material or labor arising out of the Work.
• Failure of Development Manager to provide any and all documents required by the Contract
Documents.
10. PAYMENT
Payment by the City of an approved Application for Payment approved by the A/E shall be made
within twenty-five (25) business days after receipt of Development Manager's Application for Payment to
the City, which shall be accompanied by reasonably sufficient supporting documentation and contain
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sufficient detail, to allow a proper audit of expenditures, should the City require one to be performed. All
payment applications shall be sufficiently detailed so as to meet the definition of a "payment request" for
construction services as said term is defined in §218.72, Fla Stat., the Definitions section of the "Local
Government Prompt Payment Act." City acknowledges that payment will not be unreasonably withheld
or delayed. No interest shall accrue on late payments.
Development Manager acknowledges that the City Contribution represents sixty percent (60%) of
the total Project funding, as reduced by the applicable design costs (the "City Contribution Percentage").
Payments made by the City in connection with each Application for Payment shall be for not more than
the City Contribution Percentage of the amount of the Application for Payment request with the balance
payable from the Development Manager Contribution. Notwithstanding any language contained in this
Agreement to the contrary, in no event shall the City be required to pay any amount in excess of the City
Contribution, unless an increase in the amount of the City Contribution is approved by the City
Commission.
11. PROGRESS MEETINGS
Development Manager and the City's Project Manager shall hold construction progress meetings
as deemed necessary to ensure the timely completion of the Work, but not more often than once a month.
12. DEVELOPMENT MANAGER INDEMNITY
Development Manager and Contractor, by contract or rider, addendum or amendment to its
construction contract with Development Manager, shall jointly and severally indemnify, defend, save and
hold harmless City, its officers, agents, directors, and employees, from liabilities, damages, losses, and
costs, including, but not limited to reasonable attorney's fees, and costs to the extent caused by the
negligence, recklessness or intentional wrongful misconduct of Development Manager and persons
employed or utilized by Development Manager in the performance of this Agreement and/or from any acts
or omissions relative to the permitted work and/or to the services being performed by the Development
Manager and/or the Contractor which are funded in whole or in part by virtue of this Agreement and/or
the failure of either the Development Manager or the Contractor to perform their respective work in
accordance with the terms of this Agreement, the design documents, the construction contract between the
Contractor and the Development Manager or the failure of either of them to perform their respective work
in accordance with applicable laws, codes, rules and regulations. These indemnifications shall survive the
term or cancellation of this Agreement. In the event that any action or proceeding is brought against City
by reason of any such claim or demand, Development Manager shall, upon written notice from City, resist
and defend such action or proceeding by counsel satisfactory to City. Notwithstanding anything to the
contrary herein, Development Manager and Contractor shall not be required to provide an indemnification
obligation beyond what is provided for in Florida Statutes, Sections 725.06 or 725.08, as applicable, under
Florida law.
The indemnification provided above shall obligate Development Manager to defend at its own
expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense
against any and all claims of liability and all suits and actions of every name and description arising by,
through or related to this Agreement or related to any work, materials or equipment performed which is
funded in whole or in part by this Agreement above which may be brought against City whether performed
by Development Manager, or persons employed or utilized by the Development Manager.
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This indemnity will survive the cancellation or expiration of this Agreement. This indemnity will
be interpreted under and construed to conform to the laws of the State of Florida, including without
limitation and interpretation §725.06 and/or §725.08, Fla. Statutes, if applicable. Notwithstanding anything
to the contrary herein, Development Manager shall not be required to provide any indemnification
obligations beyond what is provided for in §725.06(2) and (3), Fla. Statutes, if applicable under Florida law.
Additionally, Development Manager shall not be required to indemnify the City for the City's own
negligence. Development Manager's indemnity and defense obligations shall be capped at the greater of
the insurance proceeds available and actually paid or, if no insurance proceeds are paid, the amount paid
by the City pursuant to this Agreement.
Development Manager shall require all construction agreements it has with the Contractor include
a provision that they will indemnify the City in the manner set forth above.
The Development Manager 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 Development Manager
in which the City participated either through review or concurrence of the Development Manager's actions.
In reviewing, approving or rejecting any submissions by the Development Manager or Contractor or other
acts of the Contractor, the City in no way assumes or shares any responsibility or liability of the
Development Manager, Contractor or Sub -Contractor under this Agreement.
The City agrees and recognizes that the Development Manager shall not be held liable or
responsible for any claims which may result from any actions or omissions of the City in which the
Development Manager participated solely through review or concurrence of the City's actions.
13. INSURANCE/BONDING
The Development Manager shall not authorize the initiation of any element of the Project under
this Agreement until the Development Manager has obtained, or required its Contractor to obtain: (i) the
insurance required; and (ii) the City's Risk Management Director has approved such insurance. The
insurance listed on Exhibit F attached to this Agreement will be the required insurance for this Agreement.
On or before the commencement of any Work funded by this Agreement, Development Manager
shall require its Contractor obtain a Payment and Performance Bond in the minimum amount of Six Million
and One Hundred Thousand ($6,100,000.00) Dollars, in substantially the form prescribed by § 255.05, Fla.
Stat., naming the City of Miami as the obligee of such bond (hereinafter, the "Bond"). Such Bond will
provide that the contractor named in the bond will properly and timely pay all legal debts arising from the
construction work and will perform the Project in accordance with the terms of this Agreement, all
applicable laws, codes and regulations, and its construction contract with the Development Manager. The
Bond will be furnished to the Director prior to the commencement of any element of the Project under this
Agreement. The Bond will be issued by a surety licensed to do business in the State of Florida and rated
AV or better per A.M. Best's Key Rating Guide, latest edition.
14. MODIFICATIONS TO COVERAGE AND OWNER'S CONTROLLED INSURANCE PROGRAM
The City through its Risk Management Director or authorized designee reserves the right to require
modifications, increases, or changes in the required insurance requirements, coverage, deductibles or other
insurance obligations and shall provide a thirty (30) day written notice to the Development Manager. In
that event Contractor shall comply with such request unless the insurance coverage is not then readily
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available in the national market, and may request additional consideration from City accompanied by
justification. All additional cost will be borne by the Development Manager or Contractor, as applicable.
Notwithstanding the insurance requirements required by the City in this Agreement, the City
acknowledges that Development Manager may elect to implement an Owner Controlled Insurance
Program ("OCIP") for the Project the details of which are consistent with policy attached hereto as
Attachment "G". To the extent there is any conflict between the City's insurance requirements of this
Agreement and the Development Manager's OCIP, the OCIP requirements shall control. The parties shall
reasonably cooperate with each other to coordinate the City's insurance requirements with those of the
OCIP.
15. DISCRETION OF DIRECTOR
Any matter not expressly provided for herein dealing with the City or decisions of the City shall
be within the exercise of the reasonable professional discretion of the City Manager or the City Manager's
authorized designee.
16. AUTHORITY OF THE CITY PROJECT MANAGER
IIL
The Project Manager shall have authority to act on behalf of the City to the extent explicitly
provided by the Agreement, unless otherwise delegated to the Development Manager or modified in
writing by the City. All instructions to the Development Manager shall be issued in writing. All instructions
to the Development Manager shall be issued through the Director or Project Manager.
The Project Manager shall have access to the Project Site. The Development Manager shall provide
safe facilities for such access so the Project Manager may perform their functions under the Agreement.
The Project Manager will make periodic visits to the Project Site to become generally familiar with the
progress and quality of the Work, and to determine if the Work is proceeding in accordance with the
Contract Documents.
The Project Manager will not be responsible for construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in connection with the Construction
Work, and will not be responsible for the Development Manager's (through its Contractor) failure to carry
out the Construction Work in accordance with the Agreement.
The Project Manager will have authority to reasonably reject Construction Work that does not
conform to the Contract Documents requirements. Whenever, in his or her opinion, it is considered
necessary or advisable to insure the proper implementation of the Contract Documents, the Project
Manager will have authority to require special inspections or testing of the Construction Work, whether or
not such Construction Work is fabricated, installed or completed. Neither the Project Manager's authority
to act under this Article, nor any decision made by him/her in good faith either to exercise or not to exercise
such authority, shall give rise to any duty or responsibility of the Project Manager to the Development
Manager, Contractor any Subcontractor, supplier or any of their agents, employees, or any other person
performing any of the Construction Work.
All interpretations and recommendations of the Project Manager shall be consistent with the intent
of the Contract Documents.
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The Project Manager will not be responsible for the acts or omissions of the Development Manager,
its Contractor, or anyone employed or contracted directly or indirectly by the Development Manager,
including any Sub -Contractor, or any of their agents or employees, or any other persons performing any of
the Work.
17. SUBCONTRACTS
A Sub -Contractor is any person or entity that is performing, furnishing, supplying or providing
any portion of the Construction Work pursuant to a contract with the Development Manager or its
Contractor. Development Manager, through its Contractor, shall be solely responsible for and have control
over the Sub -Contractors.
18. OWNERSHIP & USE OF DOCUMENTS
The Drawings, Specifications and other documents prepared by the A/E(s), and copies thereof
furnished to the Development Manager and/or its Contractor, are for use solely with respect to this
Agreement.
19. CONTINUING THE WORK
v•it
Development Manager through its Contractor shall carry on the Work and adhere to the progress
schedule during all disputes or disagreements with City, including, without limitation, disputes or
disagreements concerning the Contract timeframe for completion of the Work. The Work shall not be
delayed or postponed pending resolution of any disputes or disagreements. All disputes shall be resolved
in accordance with Article 51, Resolution of Contract Disputes and Article 52 Mediation- Waiver of Jury
Trial.
20. PUBLIC ENTITY CRIMES
In accordance with the Public Crimes Act, Section 287.133, Florida Statutes (2025), a person or
affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor
list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods
or services to the City, may not submit a bid on a contract with the City for the construction or repair of a
public building or public work, may not submit bids on leases of real property to the City, may not be
awarded or perform work as a contractor, supplier, or subcontractor, under a contract with the City, and
may not transact any business with the City in excess of the threshold amount provided in Section 287.017,
Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the
convicted vendor list. Violation of this section by Development Manager shall result in cancellation of this
Agreement by the City and may result in Development Manager's debarment.
21. NON-DISCRIMINATION: EQUAL EMPLOYMENT OPPORTUNITY & AMERICANS WITH DISABILITIES
ACT
Development Manager warrants and represents that it does not and will not engage in
discriminatory practices and that there shall be no discrimination in connection with Development
Manager or it Contractor's performance under this Agreement on account of race, color, sex, religion, age,
handicap, marital status or national origin. Development Manager further covenants that no otherwise
qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status
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or national origin, be excluded from participation in, be denied services, or be subject to discrimination
under any provision of this Agreement.
Development Manager and its Contractor shall affirmatively comply with all applicable provisions
of the Americans with Disabilities Act (ADA) in the course of providing any services funded by City,
including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all
applicable regulations, guidelines, and standards. In addition, Development Manager shall take affirmative
steps to ensure nondiscrimination in employment against disabled persons.
22. AUDIT RIGHTS
At any time during normal business hours and after reasonable notice has been provided, there
shall be made available to the City and/or representatives of the City to audit, examine, and make audits
of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other
reasonable data in Development Manager's possession and relating to this Agreement. It is further
understood that all records and supporting documents pertaining to this Agreement shall be maintained
for a minimum period of four (4) years. The retention and access period starts from the date of the
submission of the annual performance and evaluation report in which the specific activity is reported for
the final time.
Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept
in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and
evaluations, the City's agent or authorized representative shall have access to said records from the
effective date of this Agreement, for the duration of the Work, and until 4 years after the date of final
payment by the City to Construction pursuant to this Agreement.
The City's agent or its authorized representative shall have access to the Development Manager's
facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work
space, in order to conduct audits in compliance with this provision. The City or its authorized
representative shall give auditees reasonable advance notice of intended audits.
If an audit inspection or examination in accordance with this Article discloses overcharges in excess
of two percent (2%) except negotiated fees by the Development Manager to the City, fifty percent (50%) of
the actual cost of the City's audit shall be paid by the Development Manager. If the audit discloses contract
billing or charges to which Development Manager is not contractually entitled, Development Manager
shall pay over to the City said sum within 20 days of receipt of a written demand unless otherwise agreed
to by both parties in writing.
If any litigation, claim, negotiation, audit or other action involving the records has been started
before the expiration of the four (4) year period, the records must be retained until completion of the action
and resolution of all issues which arise from it or until the end of the four (4) year period, whichever is
later. During the course of an audit, if the City determines that any payment made to the Development
Manager does constitute an allowable expenditure, then the City will have the right to deduct or reduce
those amounts from the related invoices. The Development Manager must maintain records necessary to
document compliance with the provisions of the Agreement. The Development Manager acknowledges
that additionally the City has the audit and inspection rights set forth in §18-100 to §18-102, City Code, as
amended.
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23. OSHA COMPLIANCE
The Development Manager warrants that it will comply with all safety precautions as required by
federal, state or local laws, rules, regulations and ordinances.
24. SAFETY PRECAUTIONS
Development Manager, itself and through its Contractor, shall comply with all applicable laws,
ordinances, rules, regulations and orders of any public body having jurisdiction for the safety of persons
or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary
safeguards for such safety and protection. Development Manager through its Contractor shall notify
owners of adjacent property and utilities when prosecution of the Construction Work may affect them. All
damage, injury or loss to any property, caused directly or indirectly, in whole or in part, by Development
Manager, Contractor, any Sub -Contractor or anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable, shall be remedied by Development Manager.
Development Manager's duties and responsibilities for the safety and protection of the
Construction Work shall continue until such time as all the Construction Work is completed and City has
issued to Development Manager a notice of Final Acceptance, said notice shall not be unreasonably
withheld or delayed.
Development Manager must adhere to the applicable environmental protection guidelines for the
duration of the Project. If hazardous waste materials are used, detected or generated at any time, the City's
Project Manager must be immediately notified of each and every occurrence. The Development Manager
shall comply with all codes, ordinances, rules, orders and other legal requirements of public authorities
(including, without limitation, OSHA, EPA, DERM, the City, Miami -Dade County, State of Florida, and
Florida Building Code) which bear on the performance of the Construction Work.
Development Manager shall require that Contractor ensure that all Work is performed using
adequate safeguards, including but not limited to: proper safe rigging, safety nets, fencing, scaffolding,
barricades, chain link fencing, railings, barricades, steel plates, safety lights, and ladders that are necessary
for the protection of its employees, as well as the public and City employees. All riggings and scaffolding
shall be constructed with good sound materials, of adequate dimensions for their intended use, and
substantially braced, tied or secured to insure absolute safety for those required to use it, as well as those
in the vicinity. All riggings, scaffolding, platforms, equipment guards, trenching, shoring, ladders and
similar actions or equipment shall be OSHA approved, as applicable, and in accordance with all federal
state and local regulations.
If an emergency condition should develop during the Project, the Development Manager must
immediately notify the City's Project Manager of each and every occurrence. The Development Manager
should also recommend any appropriate course(s) of action to the City's Project Manager.
25. PERMITS & LICENSES
Except as otherwise provided within the Agreement, all permits and licenses required by federal,
state or local laws, rules and regulations necessary for the prosecution of the Construction Work
undertaken by Development Manager pursuant to this Agreement shall be secured by Development
Manager with each party paying such permit costs allocable to improvements related to its portion of the
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Project. It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency,
valid for the Construction Work to be performed and valid for the jurisdiction in which the Construction
Work is to be performed for all persons working on the Project for whom a Certificate of Competency is
required.
26. COMPLIANCE WITH LAWS
Development Manager and its Contractor shall comply with all applicable laws, codes, ordinances,
rules, regulations and resolutions and all applicable guidelines and standards in performing its duties,
responsibilities, and obligations related to this Agreement.
27. DEFECTIVE WORK
The City's Project Manager shall have the authority to reject or disapprove Construction Work
which it finds to be defective. If required by the City, Development Manager, through its Contractor, shall
promptly either correct all defective work or remove such defective Construction Work and replace it with
non -defective Work. Development Manager shall bear all direct and indirect costs of such removal or
corrections including cost of testing laboratories and personnel.
Should Development Manager, through its Contractor, fail or refuse to remove or correct any
defective Work or to make any necessary repairs in accordance with the requirements of the Contract
Documents within a reasonable time after notice in writing provided by the City, the City shall have the
authority to cause the defective work to be removed or corrected, or make such repairs as may be
reasonably necessary at Development Manager's expense. Any reasonable expense incurred by City in
making such removals, corrections or repairs, shall be paid for out of any monies due or which may become
due to Development Manager. In the event of failure of Development Manager to make all necessary
repairs promptly and fully, which is not cured in the Cure Period, the City may declare Development
Manager in default.
If, within one (1) year after the date of Substantial Completion or such longer period of time as may
be prescribed by the terms of any applicable special warranty required by the Contract Documents, or by
any specific provision of the Contract Documents, any of the Construction Work is found to be defective
or not in accordance with the Contract Documents, Development Manager, after receipt of written notice
from City, shall promptly correct such defective or nonconforming Construction Work within the time
specified by City without cost to the City. Nothing contained herein shall be construed to establish a period
of limitation with respect to any other obligation which Development Manager might have under the
Contract Documents including but not limited to any claim regarding latent defects.
28. WARRANTY OF MATERIALS AND EQUIPMENT
Development Manager through its Contractor warrants to City that all materials and equipment
furnished under this Agreement will be new unless otherwise specified and that all of the Construction
Work will be of good quality, free from faults and defects and in conformance with the Contract
Documents. All equipment and materials not conforming to these requirements, including substitutions
not properly approved and authorized, may be considered defective. If required by City, Development
Manager shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This
warranty is not limited by any other provisions within the Contract Documents.
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29. WARRANTY OF CONSTRUCTION
The Development Manager, through its Contractor shall warrant that the Construction Work
conforms to the Agreement and is free of any patent and/or latent defect of the workmanship for a
minimum period of one year from the date of Substantial Completion.
The Development Manager's obligation under this warranty shall be at its own cost and expense,
to promptly repair or replace (including cost of removal and installation), that item (or part or component
thereof) which proves defective or fails to comply with the Agreement within the warranty period such
that it complies with the Agreement.
30. MANUFACTURER'S WARRANTY
Development Manager through the Contractor shall provide to City all manufacturers' warranties.
All warranties, expressed and/or implied, shall be given to the City for all material and equipment covered
by this Agreement. All material and equipment furnished shall be fully guaranteed by the Development
Manager, through the Contractor, against factory defects and workmanship at time of installation. At no
expense to the City, the Development Manager shall correct any and all apparent and latent defects that
are required by Florida law. The Contract Documents may supersede the manufacturer's standard
warranty.
31. No DAMAGES FOR DELAY
In the event of any delays to the Project that are caused by actions or events that are out of the
control of the owner or entities hired or control by the owner, the Contractor's sole remedy shall be to seek
an extension of time in accordance with the terms of the Agreement. The City shall not be liable for any
delay damages or damages attributable to performing Construction Work out of sequence, acceleration
claims or other similar type claims, incurred by Contractor arising out of or in any way associated with the
performance under this Agreement.
No claim for damages or any claim, other than for an extension of time, shall be made or asserted
against the City because of any delays except as provided herein. Development Manager shall not be
entitled to an increase in the Contract Price or payment or compensation of any kind from City for direct,
indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of
acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause
whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable,
foreseeable or unforeseeable, or avoidable or unavoidable. Otherwise, Development Manager shall be
entitled only to extensions of the Contract Time as the sole and exclusive remedy for such resulting delay,
in accordance with and to the extent specifically provided above.
32. EXCUSABLE DELAY
Development Manager is entitled to a time extension of the Construction Work Time for
Completion for each day the Construction Work is delayed due to Excusable Delay. Development Manager
shall document its claim for any time extension as provided in Article 35 hereof.
Where Development Manager determines that the City is liable for payment of costs due to a delay,
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any request for additional compensation must be submitted in accordance with Article 9. Development
Manager shall furnish to the City's Project Manager all documentation supporting its claim, including
details of the claim, a description of the work affected and the actual costs resulting from the delay.
Where the City agrees, in writing, to an excusable delay and the Work is being performed by the
Development Manager, the Development Manager shall be reimbursed for actual, direct costs associated
with the delay.
The Development Manager agrees that the above constitutes its sole and exclusive remedies for an
Excusable Delay. Failure of Development Manager to materially comply with Article 32 hereof as to any
particular event of delay shall be deemed conclusively to constitute a waiver, abandonment or
relinquishment of any and all claims resulting from that particular event of delay. The Guaranteed
Maximum Cost can never be exceeded or increased, except by an approved change order or approved
CCD.
33. NOTIFICATION AND CLAIM FOR CHANGE OF CONSTRUCTION WORK TIME
Any request for a change in the Time for Completion due to Force Majeure Events, as defined
below, or any other delay, shall be made by written notice by Development Manager to the Project Manager
within the timeframe set forth in Section 35 below. Thereafter, within twenty (20) calendar days of the
termination of the event giving rise to the claim, written notice of the extent of the claim with supporting
information and documentation shall be provided unless City allows an additional period of time to
ascertain more accurate data in support of the claim and such notice shall be accompanied by Development
Manager's written notarized statement that the adjustment claimed is the entire adjustment to which the
Development Manager has reason to believe it is entitled as a result of the occurrence of said event.
The Time for Completion will be extended in an amount equal to time lost on critical Construction
Work items due to delays resulting directly from Force Majeure Events.
34. CHANGES IN THE WORK OR TERMS OF CONTRACT DOCUMENTS
Without invalidating the Agreement and without notice to any Surety, City reserves and shall have
the right, from time to time to make such increases, decreases or other changes in the character or quantity
of the Construction Work as may be considered necessary or desirable to complete fully and acceptably the
proposed construction in a satisfactory manner. Any extra or additional work within the scope of this
Project must be issued in writing in accordance with the requirements of this Agreement.
Any changes to the terms of the Contract Documents must be contained in a written document,
executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any
Construction Work reflecting such change. This Article shall not prohibit the issuance of Change Orders
executed only by City as hereinafter provided.
35. FORCE MAIEURE
Should any failure to perform on the part of Development Manager be due to a Force Majeure
Event, then the City shall allow an extension of time reasonably commensurate with the cause of such
failure to perform or cure.
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If the Development Manager is delayed in performing any obligation under this Agreement due
to a Force Majeure Event , the Development Manager shall request a time extension from the City within
seven (7) working days of the conclusion of said Force Majeure Event. Any time extension shall be subject
to mutual agreement and shall not be cause for any claim by the Development Manager for extra
compensation.
36. FIELD DIRECTIVES
The City's Project Manager may at times issue Field Directives to the Development Manager based
on visits to the Project site. Such Field Directives shall be issued in writing and the Development Manager
shall be required to comply with such reasonable directives. Where the Development Manager believes
that the directive is outside the scope of the Construction Work or unreasonable, the Development Manager
shall, within 48 hours, advise the City's Project Manager that the Field Directive is either unreasonable
and/or outside the scope of the Work. At that time the Field Directive may be rescinded, or the
Development Manager may be required to submit a request for a change order proposal. Where the
Development Manager is notified of the City's position that the Field Directive is within the scope and/or
reasonable and the Development Manager disagrees, the Development Manager shall notify the City's
Project Manager that the Development Manager reserves the right to make a claim for the time and monies
based on the Field Directive. At no time shall the Development Manager unreasonably refuse to comply
with the directive. Failure to reasonably comply with the directive may result in a determination that the
Development Manager is in default of the Agreement.
37. CHANGE ORDERS
Changes in the quantity or character of the Construction Work of the Project which are not properly
the subject of field directives or supplemental instructions, including all changes resulting in changes in
the contract price or time shall be authorized only by change orders approved in advance by City and
Development Manager and issued in accordance with the terms of this Agreement.
All changes to Work must be approved in advance in accordance with the value of the change
order or the calculated value of the time extension. All change orders increasing the value of the Agreement
by $50,000 or more shall be approved in advance by the City Commission. All change orders increasing
the value of the Agreement by less than $50,000 in the aggregate may be approved in advance by the City
Manager or his designee.
38. VALUE OF CHANGE ORDER WORK
The value of any Work to be covered by a change order, or for any claim for an increase or decrease
in the Agreement, shall be determined in one of the following ways:
• Where the Work involved is covered by unit prices contained in the Schedule of Values, by
application of unit prices to the quantities of items involved.
• By mutual acceptance of a lump sum which Development Manager and City acknowledge
contains a component for overhead and profit.
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39. INSPECTION OF WORK
The City shall at all times have access to the Construction Work during normal work hours.
Inspectors sent in the City's proprietary capacity shall have no authority to permit deviations from, or to
relax any of the provisions of the Contract Documents or to delay the Construction Work by failure to
inspect the materials and Construction Work with reasonable promptness without the written permission
or instruction of City. The foregoing shall not serve to limit the City's regulatory authority as set forth under
applicable laws.
The payment of any compensation, whatever may be its character or form, or the giving of any
gratuity or the granting of any favor by Development Manager to any inspector, directly or indirectly, is
strictly prohibited, and any such act on the part of Development Manager will constitute a breach of this
Agreement.
40. SUBMITTALS
All submittals for the Work shall be completed by the Architect/Engineer ("A/E").
City shall not be liable for any materials, fabrication of products or other Work commenced that
requires submittals until the City has returned approved submittals to the Contractor.
City shall make every effort to review submittals within ten (10) calendar days from the date of
receipt by the City. City's review shall only be for conformance with design concepts and the information
provided in the Contract Documents. The approval of a separate item shall not constitute approval of an
assembly in which the item functions. The City shall return the shop drawings to the Development
Manager for its use and distribution.
Approval of any submittal shall not relieve the Development Manager and Contractor of any
responsibility for any deviations from the requirements of the Contract Documents unless the
Development Manager has given written notice to the City of the specific deviations and the City has issued
written approval of such deviations.
Development Manager shall be responsible for the distribution of all shop drawings, copies of
product data and samples, which bear the A/E and City's stamp of approval. Distribution shall include, but
not be limited to: job site file, record documents file, sub -contractors, suppliers, and other affected
contractors or entities that require the information.
During the progress of the Construction Work, the Development Manager shall submit copies of
all reports, permits and inspections required by governing authorities, or necessary for the Project.
41. SUBSTITUTIONS
Development Manager shall submit all requests for substitutions to the City for review and
approval. All such requests shall include sufficient documentation to support such request. City may
request additional information as deemed necessary to properly review such requests.
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42. SHOP DRAWINGS
Development Manager, through the Contractor shall submit Shop Drawings as required by the
Contract Documents. The purpose of the Shop Drawings is to show, in detail, the suitability, efficiency,
technique of manufacture, installation requirements, and details of the item and evidence of its compliance
or noncompliance with the Contract Documents.
If the Shop Drawings show or indicate departures from the Contract Documents' requirements,
Development Manager, through the Contractor shall make specific mention thereof in its letter of
transmittal. Failure to point out such departures shall not relieve Development Manager from its
responsibility to comply with the Contract Documents.
City shall review and approve Shop Drawings within ten (10) calendar days from the date received,
unless said Shop Drawings are rejected by City for material reasons. City's approval of Shop Drawings will
be general and shall not relieve Development Manager of responsibility for the accuracy of such Shop
Drawings, nor for the proper fitting and construction of the work, nor for the furnishing of materials or
work required by the Contract Documents and not indicated on the Shop Drawings. No work called for by
Shop Drawings shall be performed until the said Shop Drawings have been approved by City. Approval
shall not relieve Development Manager from responsibility for errors or omissions of any sort on the Shop
Drawings.
No approval will be given to partial submittals of Shop Drawings for items which interconnect
and/or are interdependent where necessary to properly evaluate the design. It is Development Manager's,
through the Contractor, responsibility to assemble the Shop Drawings for all such interconnecting and/or
interdependent items, check them and then make one submittal to City along with its comments as to
compliance, noncompliance, or features requiring special attention.
If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings,
any additional information or changes on such drawings shall be typewritten or lettered in ink.
Each shop drawing shall be clear, thoroughly detailed and shall have listed on it all Contract
Document references, drawing number(s), specification section number(s) and the shop drawing numbers
of related work. Shop drawings must be complete in every detail, including location of the work. Materials,
gauges, methods of fastening and spacing of fastenings, connections with other work, cutting, fitting,
drilling and any and all other necessary information per standard trade practices or as required for any
specific purpose shall be shown.
Where professional calculations and/or certification of performance criteria of materials, systems,
and or equipment are required, the City is entitled to rely upon the accuracy and completeness of such
calculations and certifications submitted by the Development Manager. Calculations, when required, shall
be submitted in a neat clear and easy format to follow.
Development Manager shall keep one set of Shop Drawings marked with A/E and City's approval
at the job site at all times.
43. PRODUCT DATA
Development Manager, through the Contractor shall submit a copy of product data. Copies must
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be marked to identify applicable products, models, options and other data. Development Manager, through
the Contractor shall supplement manufacturer's standard data to provide information unique to the
Construction Work.
Development Manager, through the Contractor shall only submit pages that are pertinent.
Submittals shall be marked to identify pertinent products, with references to the specifications and the
Contract Documents. Identify reference standards, performance characteristics and capacities, wiring and
piping diagrams and controls, component parts, finishes, dimensions and required clearances.
44. AS -BUILT DRAWINGS
During the Construction Work, Development Manager, through the Contractor shall maintain
records of all deviations from the Drawings and Specifications as approved by the City and prepare As -
Built Record Drawings showing correctly and accurately all changes and deviations made during
construction to reflect the work as it was actually constructed. It is the responsibility of the Development
Manager, through the Contractor to check the As -Built Drawings for errors and omissions prior to
submittal to the City and certify in writing that the As -Built Drawings are correct and accurate, including
the actual location of all internal piping, electrical/signal conduits in or below the concrete floor. Indicate
the size, depth and voltage in each conduit.
Legibly mark to record actual construction: On -site structures and site work as follows:
• Depths of various elements of foundation in relation to finish first floor datum.
All underground piping and ductwork with elevations and dimensions and locations of
valves, pull boxes, etc. Changes in location. Horizontal and vertical locations of underground
utilities and appurtenances, referenced to permanent surface improvements. Actual installed
pipe material, class, etc.
Location of internal utilities and appurtenances concealed in the construction, referenced to
visible and accessible features of the structure. Air conditioning ducts with locations of
dampers, access doors, fans and other items needing periodic maintenance.
• Field changes in dimensions and details.
• Changes made by City's written instructions or by Change Order.
• Details not on original Contract Drawings.
• Equipment, conduit, electrical panel locations.
• City schedule changes according to Contractor's records and shop drawings.
Specifications and Addenda: Legibly mark each section to record:
• Manufacturer, trade name, catalog number and Supplier of each product and item of
equipment actually installed.
• Approved Shop Drawings: Provide record copies for each process, equipment, piping,
electrical system and instrumentation system.
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45. REQUESTS FOR INFORMATION (RFI)
The Development Manager or its Contractor shall submit in writing a Request for Information (RFI)
to the City's Project Manager or A/E, as applicable, where the Development Manager or Contractor believe
that the specifications or drawings are unclear or conflict. All requests must be submitted in a manner that
clearly identifies the drawing and/or specification section where clarification or interpretation is being
requested.
46. CITY'S RIGHT TO TERMINATE
The City Manager has the right to terminate this Agreement for any reason or no reason, upon
thirty (30) days written notice. Such written notice shall state the date upon which Development Manager
shall cease all Construction Work under this Agreement and vacate the Project site. Upon termination of
this Agreement, all charts, sketches, studies, drawings, reports and other documents, including electronic
documents, related to Construction Work authorized under this Agreement, whether finished or not, must
be turned over to the City. The Development Manager shall be paid for Construction Work performed and
accepted by the City, provided that said documentation is turned over to City within twenty (20) business
days of termination.
Failure to timely deliver the documentation shall be cause to withhold any payments due without
recourse by Development Manager until all documentation is delivered to the City. In such event, the City
shall pay to Development Manager Compensation for Services rendered and approved expenses incurred
prior to the effective date of termination. In no event shall the City be liable Development Manager for any
additional compensation and expenses incurred, other than that provided herein, and in no event shall the
City be liable for any consequential or incidental damages.
47. TERMINATION BY DEFAULT
If Development Manager fails to comply with any material term or condition of this Agreement,
or fails to perform any of its obligations hereunder, then Development Manager shall be in default. Upon
the occurrence of a default which is not cured within the Cure Period, in addition to all remedies available
to it by law, the City may immediately, upon written notice to Development Manager, terminate this
Agreement. The City may also suspend any payment or part thereof or order a Work stoppage until such
time as the issues concerning compliance are resolved. Development Manager understands and agrees that
termination of this Agreement under this Article shall not release Development Manager from any
obligation accruing prior to the effective date of termination.
In the event of termination due to default, in addition to the foregoing Development Manager shall
be liable for all costs and expenses incurred by the City in the procurement of the Construction Work under
this Agreement. In the event of Default, the City may also issue a Notice to Cure and suspend or withhold
payments to Development Manager until such time as the actions giving rise to default have been cured.
In no event shall the Development Manager be liable to the City for any additional expenses incurred, other
than that provided herein, and in no event shall the Development Manager be liable for any consequential
or incidental damages.
A finding of default and subsequent termination for cause may include, without limitation, any of
the following:
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• Development Manager fails to obtain the insurance herein required.
• Development Manager fails to comply with any of its duties under this Agreement, with
any terms or conditions set forth in this Agreement beyond the specified period allowed to
cure such default.
• Development Manager fails to commence the Work within the timeframes provided or
contemplated herein, or fails to complete the Work in a timely manner as required by this
Agreement.
The City shall provide Written Notice to Cure to Development Manager as to a finding of default,
and Development Manager shall take all necessary action to Cure said default within such time as
stipulated in the Written Notice. Such Written Notice shall provide a minimum of 30 days to Cure any
alleged default. Such time to Cure shall be at the sole discretion of the City but be no less than 30 days. The
City may extend the Cure Period at its sole discretion or terminate the Agreement upon failure of the
Development Manager to cure such default in the specified timeframe.
48. DEVELOPMENT MANAGER'S RIGHT TO TERMINATE
The Development Manager shall have the right to terminate this Agreement, in writing, following
breach by the City, if breach of contract has not been corrected within thirty (30) days from the date of the
City's receipt of a written notice from Development Manager specifying the City's breach of its duties under
this Agreement. The City shall only be responsible for payment of Development Manager compensation
for Services rendered and approved expenses incurred prior to the effective date of termination. In no event
shall the City be liable to Development Manager for any additional compensation and expenses incurred,
other than that provided herein, and in no event shall the City be liable for any consequential or incidental
damages.
49. MATERIALITY AND WAIVER OF BREACH
City and Development Manager agree that each requirement, duty, and obligation set forth in these
Contract Documents is substantial and important to the formation of this Agreement.
The parties failure to enforce any provision of this Agreement shall not be deemed a waiver of such
provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall
not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the
terms of this Agreement.
50. ACCEPTANCE AND FINAL PAYMENT
Upon receipt of written notice from Development Manager that the Construction Work is ready
for final inspection and acceptance, the City shall, within ten (10) calendar days, make an inspection
thereof. If City's Project Manager find the Work acceptable, the requisite documents have been submitted
and the requirements of the Contract Documents fully satisfied, and all conditions of the permits and
regulatory agencies have been met, a Final Certificate for Payment (Attachment E) shall be issued by
City's Project Manager, over its signature, stating that the requirements of the Contract Documents have
been performed and the Work is ready for acceptance under the terms and conditions thereof.
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Before issuance of the Final Certificate for Payment, Development Manager shall deliver to City's
Project Manager a conditional release of all liens arising out of this Agreement, or receipts in full in lieu
thereof; an affidavit certifying that all suppliers, Sub -Contractors, and Contractor have been or will be
(out of the final payment) paid in full and that all other indebtedness connected with the Construction
Work has been or will be paid; the final corrected As -Built Drawings; the Record Set; and the final bill of
materials, if required, and Application for Payment. Development Manager shall deliver the written
Contractor's and all Manufacturer's warranties prior to issuance of the Final Certificate for Payment.
If, after the Construction Work has been substantially completed, full completion thereof is
materially delayed through no fault of Development Manager or its Contractor, and NE so certifies, City
shall, upon certificate of City's Project Manager, and without terminating the Agreement, make payment
of the balance due for that portion of the Work fully completed and accepted. Such payment shall be
made under the terms and conditions governing final payment, except that it shall not constitute a waiver
of unknown claims.
The making of and acceptance of final payment shall constitute a waiver of all claims by
Development Manager and the City, except to the extent such claims are a result of Development
Manager's failure to comply with the obligations set forth in this Agreement, including but not limited to
those identified by Development Manager or the City as unsettled at the time of the application for final
payment.
51. RESOLUTION OF CONTRACT DISPUTE
Development Manager understands and agrees that all disputes between it and the City based
upon an alleged violation of the terms of this Agreement by the City shall be initially submitted to the
Director for resolution. Upon receipt of the submittal from the Development Manager, the Director shall
render a decision within fourteen (14) calendar days. Where a mutually satisfactory resolution cannot be
reached the Development Manager may submit the dispute to the City Manager or his/her designee for
resolution. Where a mutual resolution cannot be reached between the Development Manager and the City
Manager or designee, the Development Manager, prior to being entitled to seek judicial relief shall comply
with Article 51 of this Agreement, in connection therewith. Should the amount of City Contribution
hereunder exceed $4.1 million, the City Manager's decision shall be approved or disapproved by the City
Commission. Development Manager shall not be entitled to seek judicial relief unless:
• It has first received City Manager's written decision, approved by the City Commission, if
applicable, or
• A period of sixty (60) days has expired after submitting to the City Manager a detailed
statement of the dispute, accompanied by all supporting documentation or a period of
seventy-five (75) days has expired where City Manager's decision is subject to City
Commission approval; and
• Mediation of the dispute, as stipulated in Article 52, has not resulted in a mutual
resolution; or
• City has waived compliance with the procedure set forth in this Article by written
instrument(s) signed by the City Manager.
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If Development Manager is required to file a lawsuit in order to meet a statute of limitations before
it has complied with any of the above requirements, it shall be entitled to file the action and then the City
may move to stay the action to allow the Development Manager to comply with the conditions precedent
to litigation as set forth in this Agreement.
52. MEDIATION — WAIVER OF JURY TRIAL
In an effort to engage in a cooperative effort to resolve conflict which may arise during the course
of the design and/or construction of the Project, and/or following the completion of the Project, the parties
to this Agreement agree all unresolved disputes between them shall be submitted to non -binding
mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties. A certified
Mediator, who the parties find mutually acceptable, will conduct any Mediation Proceedings in Miami -
Dade County, State of Florida. The parties will share the costs of the certified Mediator equally.
In an effort to expedite the conclusion of any litigation, the parties voluntarily waive their right to
jury trial in any action arising under this Agreement.
53. SUBSTANTIAL COMPLETION, PUNCH LIST AND FINAL -COMPLETION
The Construction Work shall be substantially complete when the City's Project Manager, in the
reasonable exercise of his/her discretion determines that the Construction Work is complete, there are no
material and/or substantial variations from the Agreement, and the Construction Work is fit for its intended
purpose. City's Project Manager shall not unreasonably withhold or delay its approval. Upon Substantial
Completion, City's Project Manager and the Development Manager shall sign the Substantial Completion
Inspection Form. The signing of this form shall not relieve the Development Manager from its obligation
to complete the Project.
When the Development Manager believes that the Construction Work is substantially complete,
the Development Manager shall request in writing that the City inspect the Construction Work to
determine if Substantial Completion has been achieved. No request for Substantial Completion inspection
is to be submitted until the Development Manager has obtained a Certificate(s) of Occupancy, Certificate
of Completion, or other equivalent. The City shall schedule the date and time for any inspection and notify
the Development Manager and any other parties deemed necessary. During this inspection, the Project
Substantial Completion Inspection Form, (Attachment B), will be completed as necessary. Any remaining
Construction Work shall be identified on this form and shall be known as Punch List work. The Punch List,
(Attachment C), shall be signed by the City's Project Manager and the Development Manager confirming
that the Punch List contains the item(s) necessary to complete the Construction Work. The failure or refusal
of the Development Manager to sign the Project Substantial Completion Inspection Form or Punch List
shall not relieve the Development Manager from complying with the reasonable findings of the Project
Substantial Completion Inspection and completing the Project to the satisfaction of the City.
Where the Punch List is limited to minor omissions and defects, the City shall indicate that the
Construction Work is substantially complete subject to completion of the Punch List. Where the City
determines, on the appropriate form that the Construction Work is not substantially complete, the City
shall provide a list of all open items necessary to achieve Substantial Completion. Upon completion of such
Construction Work, the Development Manager shall request another Substantial Completion inspection.
The City's Project Manager and the Development Manager shall agree on the time reasonably
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54. APPLICABLE LAW AND VENUE OF LITIGATION
required to complete all remaining Construction Work included in the Punch List.
Upon the receipt of all documentation, resolution of any outstanding issues and issuance of final
payment, the City shall notify the Development Manager in writing of the closeout of the Project.
The City will prepare a Certificate of Substantial Completion in the form attached hereto as
Attachment D which shall establish the Date of Substantial Completion. Once substantial completion is
achieved the City shall be responsible for security, maintenance, heat, utilities, damage to the Project site,
and insurance; and shall list all Construction Work yet to be completed to satisfy the requirements of the
Contract Documents for Final Completion. The failure to include any items of corrective work on such list
does not alter the responsibility of Development Manager to complete all of the Construction Work in
accordance with the Contract Documents. Warranties required by the Contract Documents shall commence
on the date of Substantial completion of the Construction Work or designated portion thereof unless
otherwise provided in the Certificate of Substantial Completion. 111
This Agreement shall be interpreted and construed in accordance with and governed by the laws
of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out
of this Agreement, shall be brought in Miami -Dade County, Florida. Each party shall bear its own attorney's
fees except in actions arising out of Development Manager's duties to indemnify the City under this
Agreement where Development Manager shall pay the City's reasonable attorney's fees.
55. INDEPENDENT CONTRACTOR
Development Manager is an independent contractor under this Agreement. Services provided by
Development Manager pursuant to this Agreement shall be subject to the supervision of Contractor. In
providing such services, neither Development Manager nor its agents shall act as officers, employees, or
agents of the City. Development Manager further understands that Florida Workers' Compensation
benefits available to employees of the City are not available to Development Manager, and agrees to
provide workers' compensation insurance for any employee, or entity working for the Development
Manager rendering services to the City under this Agreement. This Agreement shall not constitute or make
the parties a partnership or joint venture.
56. SUCCESSORS AND ASSIGNS
The performance of this Agreement shall not be transferred pledged, sold, delegated or assigned,
in whole or in part, by the Development Manager without the written consent of the City. It is understood
that a sale of the majority of the stock or partnership shares of the Development Manager, a merger or
bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would
constitute an assignment or sale hereunder requiring prior City approval.
The Development Manager's services are unique in nature and any transference without City
Commission approval shall be cause for the City to nullify this Agreement. Any assignment without the
City's consent shall be null and void. The Development Manager shall have no recourse from such
cancellation. The City may require bonding, other security, certified financial statements and tax returns
from any proposed assignee and the execution of an assignment/assumption agreement in a form
satisfactory to the City Attorney as a condition precedent to considering approval of an assignment.
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57. THIRD PARTY BENEFICIARIES
Neither Development Manager nor the City intends to directly or substantially benefit a third party
by this Agreement. Therefore, the parties agree that there are no third -party beneficiaries to this Agreement
and that no third party shall be entitled to assert a claim against either of them based upon this Agreement.
The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third
person or entity under this Agreement.
58. JOINT PREPARATION- INTERPRETATION
The language of this Agreement has been agreed to by both parties to express their mutual intent
and no rule of strict construction shall be applied against either party hereto. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other
gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires.
Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not
to any particular sentence, article, paragraph, or section where they appear, unless the context otherwise
requires. Whenever reference is made to a Section or Article of this Agreement, such reference is to the
Section or Article as a whole, including all of the subsections of such Section or Article, unless the reference
is made to a particular subsection.
59. AMENDMENTS
No modification, amendment, or alteration in the terms or conditions contained herein shall be
effective unless contained in a written document prepared with the same or similar formality as this
Agreement and executed by the City Manager and Development Manager.
60. SEVERABILITY
Should any provision of this Agreement is determined by a Court of competent jurisdiction to be
illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this
Agreement, and the remainder of this Agreement shall continue in full force and effect. Notwithstanding
the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights
of either party, such party may elect, at its option, to terminate this Agreement in its entirety. An election
to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding
by the court becomes final.
61. ENTIRE AGREEMENT
This Agreement, as it may be amended from time to time, represents the entire and integrated
agreement between the City and the Development Manager and supersedes all prior negotiations,
representations or agreements, written or oral. This Agreement may not be amended, changed, modified,
or otherwise altered in any respect, at any time after the execution hereof, except by a written document
executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any
provision of this Agreement shall not be deemed to be a waiver of any other breach
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62. CONFLICT OF INTEREST
Development Manager covenant that no person under its employ who presently exercises any
functions or responsibilities on behalf of the City in connection with this Agreement has any personal
financial interests, direct or indirect, with the Contractor. Development Manager further covenants that,
in the performance of the Agreement, no person having such conflicting interest shall be employed. Any
such interest on the part of the Contractor or its employees must be disclosed in writing to the City.
Development Manager is aware of the conflict -of -interest laws of the City, Miami City Code Sec.
2-11, Miami -Dade County, Florida, Miami -Dade County Code Sec. 2-11.1; and the State of Florida, Chapt.
112, Part III, Florida Statutes, as amended, and agrees that it shall fully comply in all respects with the terms
of said laws.
63. INDEPENDENT CONTRACTOR
Development Manager, its employees, agents or representatives, shall be deemed to be
independent contractors and not agents or employees of the City and shall not attain any rights or benefits
under the civil service or pension ordinances of the City, or any rights generally afforded classified or
unclassified employees. Development Manager, its employees, agents or representatives, shall not be
entitled to Florida Workers' Compensation benefits as an employee of the City.
64. PUBLIC RECORDS
Development Manager shall comply with Chapter 119, Florida Statutes, as may be applicable, shall
additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and
maintain public records that ordinarily and necessarily would be required by the City to perform this
service; (2) provide the public with access to public records on the terms and conditions as the City would
at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that
public records that are exempt or confidential and exempt from disclosure are not disclosed except as
authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the City
all public records that are exempt or confidential and exempt from disclosure requirements; (5) all
electronically stored public records must be provided to the City in a format compatible with the City's
information technology systems.
SHOULD DEVELOPMENT MANAGER DISPUTE ANY PUBLIC ACCESS REQUIRED BY
FLORIDA STATUTES, THEN DEVELOPMENT MANAGER SHALL DO SO AT ITS OWN EXPENSE
AND AT NO COST TO THE CITY. IF CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO DEVELOPMENT MANAGER'S DUTY
TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT (305) 416-1800, VIA EMAIL AT
PUBLICRECORDS@MIAMIGOV.COM, OR REGULAR MAIL AT CITY OF MIAMI OFFICE OF THE
CITY ATTORNEY, 444 SW 2ND AVENUE, 9TH FLOOR, MIAMI, FL 33130.
65. 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
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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.
For the City of Miami:
City Manager
444 S.W. 2nd Avenue, 10th Floor
Miami, FL 33130-1910
With a copy to:
Director of Capital Improvements
444 S.W. 2nd Avenue, 8th Floor
Miami, FL 33130-1910
For Development Manager:
Coconut Grove Condo, LLC
Attn: W. Spencer Morris
121 Alhambra Plaza, Ste. 1600
Coral Gables, FL 33134
Telephone: (305) 443-1000
Email: WASM@allenmorris.com
66. CITY RIGHTS AS SOVEREIGN
The City is entering into this Agreement only in its proprietary (not regulatory) capacity and retains
all of its sovereign prerogatives and rights and regulatory authority (quasijudicial or otherwise) as a City
under all applicable laws (all of which shall be absolute and unfettered in all respects), and shall in no way
be estopped from withholding or refusing to issue any approvals, licenses or permits granted by the City
in its governmental capacity or applications for building, zoning, planning or development under present
or future laws and regulations whatever nature applicable to the planning, design, construction and
development of the AMCO Grove Project, the Project, or any other development contemplated in this
Agreement, or the operation thereof. The City shall not by virtue of this Agreement or any other document
associated with the development be obligated to grant or be deemed to have granted any approvals,
permits or licenses by the City in its governmental capacity. Notwithstanding and prevailing over any
contrary provision in this Agreement, any City obligation that may be contained herein shall not require
the City or any other city, county, federal or state department or authority, committee or agency to grant
or leave in effect any zoning changes, variances, Permits, zoning waivers, or any other governmental
approvals that may be granted, withheld, or revoked by the City or other applicable governmental
agencies, acting in their governmental capacity. In no event shall the City have any obligations or liabilities
to Development Manager or any third parties under this Agreement or otherwise on account of the City's
exercise of its sovereign prerogatives and rights and regulatory authority (quasi-judicial or otherwise) as a
municipal government under applicable laws. Without limitation of the foregoing, nothing contained in
this agreement is intended as a waiver of City's sovereign immunity as set forth under Section 768.28,
Florida Statutes, or otherwise.
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67. ANTI -HUMAN TRAFFICKING
Development Manager confirms and certifies that it is not in violation of Section 787.06, Florida
Statutes, and that it does not and shall not use "coercion" for labor or services as defined in Section 787.06,
Florida Statutes. The Development Manager shall execute and submit to the City an Affidavit, of even date
herewith, in compliance with Section 787.06(13), Florida Statutes, attached and incorporated herein as
Exhibit "D". If the Development Manager fails to comply with the terms of this Section, the City may
suspend or terminate this Agreement immediately, without prior notice, and in no event shall the City be
liable to Development Manager for any compensation or expense, including, but not limited to, any
consequential or incidental damages.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have se their hands and seals on the day and year first
shown above:
CITY
City of Miami, Florida, a municipal
Corporation
ATTEST:
By: By:
Todd B. Hannon, City Clerk Arthur Noriega,V, City Manager
APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE
AND CORRECTNESS: REQUIREMENTS:
George Wysong, Esq. David Ruiz, Interim Director
City Attorney
Title:
Department of Risk Management
DEVELOPMENT MANAGER
COCONUT GROVE CONDO, LLC, a Florida
limited liability company
By:
Yazmin Gil, Manager