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HomeMy WebLinkAboutExhibit - Agreement for Acceptance of Fitness Zone EquipmentAGREEMENT FOR ACCEPTANCE OF FITNESS ZONE EQUIPMENT AT CITY OF MIAMI PROPERTY This Agreement for Acceptance of Fitness Zone Equipment at Jose Marti Park ("Agreement") was made and entered into this day of December, 2017 by and between THE TRUST FOR PUBLIC LAND, a California not-for-profit corporation, whose principal address is 101 Montgomery Street, 91h Floor, San Francisco, California ("TPL"), and the City of Miami, a municipal corporation organized under the laws of the State of Florida, located at 444 SW 2"d Avenue, Miami, FL, 33130 ("City"). RECITALS The City operates and maintains real property located at the address 351 Southwest 41h Avenue, Miami, Florida, also known as Jose Marti Park ("Property"), and more particularly described as follows: A. In support of TPL's Parks for People Program, TPL is receiving a grant from the ("Grant Agreement") and other sources of grant funding for the purpose of: (i) purchasing from ("Supplier") exercise equipment ("Equipment") identified in that certain Right of Entry Permit and License Agreement between TPL and City (the "Entry Permit") for each Park and (ii) contract with (the "Installer") for the installation of the Equipment, on the Property, in accordance with the terms of the Entry Permit. The Entry Permit is attached hereto as Exhibit A. B. TPL will donate all Equipment including the cost of installation to City. City will maintain equipment in accordance with this Agreement. NOW, THEREFORE, the parties agree as follows: 1. Term. This Agreement shall become effective upon full execution and delivery hereof by the parties ("Effective Date"). This Agreement shall expire on the date upon which City executes a letter accepting the Equipment as discussed in Section 5 below, except as specifically provided herein. 2. Payments. TPL will be fully responsible for all payments for the cost of acquisition and delivery of the Equipment, including the installation and construction thereof in accordance with the terms of the Entry Permit. 1 Construction Management. TPL will provide general management of construction activity, including but not limited to scheduling construction activity, insuring construction meets the terms of the Entry Permit, conducting progress meetings, providing meeting minutes and coordinating communications between all parties. City staff will participate in the scheduled progress meetings to keep abreast of construction activity and to insure that work complies with the terms of the Entry Permit. Payments for equipment, installation, project management Page 1 of 13 shall be made in accordance with the terms of this agreement, the installer agreement between TPL and the Installer (the "Installer Agreement") and any Purchase order issued by the City for the City Expenses (the "City Purchase Order"). TPL will pay of the total cost of the Fitness Zone projects in the Property. TPL shall comply with all applicable City ordinances, County, State and Federal laws, and in the course thereof, with the assistance of the City, obtain and keep in effect all permits and licenses required to conduct the installation of recreational equipment on the Property. TPL shall provide the City copies of all executed vendor agreements, executed installer agreements, insurance agreements, building permits, installer final payment notices, and vendor final payment notices. 4. Repair of Damage. In addition to TPL's responsibilities pursuant to the Entry Permit, if TPL becomes aware that any portion of the Property is damaged or threatened by any of the activities of TPL or anyone acting by or through TPL hereunder, with the exception of any disturbance of the Property necessary to install the Equipment, TPL shall promptly notify City of such damage or threat by facsimile or hand delivery. TPL shall remedy any and all such damage or threat and restore the Property to its previous condition subject to City's approval. 5. Indemnification. Prior to issuance, by City, of the Acceptance Letter pursuant to Section 6 of this Agreement, TPL shall indemnify, defend and hold harmless the City, it's elected and appointed officers, employees and agents from and against any and all liability, including but not limited to demands, claims, actions, fees, costs and expenses (including attorneys and expert witness fees) arising from or connected with TPL's acts or omissions arising from or related to this Agreement. Prior to issuance, by City, Installer must agree to shall indemnify, defend and hold harmless the City, it's elected and appointed officers, employees and agents from and against any and all liability, including but not limited to demands, claims, actions, fees, costs and expenses (including attorneys and expert witness fees) arising from or connected with Installer's acts or omissions arising from or related to this Agreement. After the issuance by City of the Acceptance Letter pursuant to Section 6 of this Agreement, to the extent allowed by law, City shall indemnify and save harmless TPL and its officers, agents and employees, and contractors, from any and all liability, including but not limited to demands, claims, actions, fees, costs and expenses (including attorneys' and expert witness fees), and claims thereof for injury to or death of a person or loss of or damage to property, resulting directly or indirectly from any activity or use of the Equipment, except and to the extent where such liability or claim is the direct or indirect result of any act of or any omission to perform some duty imposed by law or agreement on TPL and its officers, agents, and employees, or contractor(s), in which instance, TPL shall defend, indemnify and save harmless City, its officers, agents and employees; and this indemnification by the City shall not constitute a waiver of sovereign immunity beyond the limits set forth in Section 768.28, Page 2 of 13 Florida Statutes. The terms of this paragraph shall survive the termination or expiration of this Agreement. 6. Final Acceptance. Upon receipt of notice from TPL that the Equipment has been installed in a Park, City shall, within five (10) working days of receipt of such notice, perform a final inspection. Contingent on the City conducting this inspection, and the Equipment passing this inspection, TPL shall obtain the consent of the manufacturer of the Equipment for assignment to City and assign any and all warranties it received from the manufacturer of the Equipment as described in Exhibit B attached hereto. Upon City's inspection and decision to accept the Equipment in a Park after the Equipment passes the final inspection, City will, no later than three (5) working days from such decision to accept the work execute a letter of final acceptance (the "Acceptance Letter") addressed to TPL, a form of which is attached as Exhibit C. Upon receipt of the Acceptance Letter, TPL will countersign the Acceptance Letter and assign any and all warranties received from the manufacturer of the Equipment. Prior to City's final inspection and issuance of the Acceptance Letter, the construction fence provided by the Installer shall remain in place and the Equipment shall not be made available for public use. In the event, for any reason, the construction fence is removed by City and the Equipment is made available for public use prior to issuance of the Acceptance Letter, then the City shall be deemed to have accepted the Equipment in accordance with the provisions of this paragraph and the Acceptance Letter and TPL shall have no further responsibility hereunder. In any event, the City shall remain responsible for providing to TPL the fully executed Acceptance Letter which shall be effective as of the date the equipment was made available for public use. 7. Maintenance. City will be responsible for the maintenance, removal or replacement of the Equipment in its sole discretion after execution of an applicable Acceptance Letter by City. 8. Miscellaneous. (a) This Agreement may be amended or modified only in writing signed by TPL and City. (b) This Agreement, including the Exhibits and Recitals hereto, which are incorporated herein by reference, together with the Entry Permit and Grant Agreement contain the entire understanding between the parties as of the date of this Agreement, and all prior written or oral negotiations, discussions, understandings and agreements are merged herein. (c) It is expressly understood that this Agreement to enter the Parks and install recreational equipment and accessories creates no estate or interest in real property and no property is being conveyed to TPL, and the right to access and use is only a nonexclusive, revocable and unassignable permission to use the Parks in accordance with the terms and conditions of this Agreement. Page 3of13 (d) At the time that this agreement is executed, the geographic location of the fitness zones within the Property and the equipment that will be installed must be identified and attached to this agreement in Exhibit E. 9. Authorized Signatures. The parties will have the Agreement executed by representatives authorized to execute, amend, and enforce this Agreement. 10. Venue. This Agreement shall be governed according to the laws of the State of Florida and venue in any proceedings shall be in Miami -Dade County, Florida. 11. Public Records. A. TPL understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City agreements, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable laws. TPL's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this agreement by the City. B. TPL shall additionally comply with Section 119,0701, Florida Statutes, including without limitation: (1) keeping and maintaining 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 same 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 in its possession upon termination of this agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; and, (5) provide all electronically stored public records to the City in a format compatible with the City's information technology systems. C. Should TPL determine to dispute any public access provision required by Florida Statutes, then TPL shall do so at its own expense and at no cost to the City. IF TPL HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO TPL'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 410-1830, Via email at PublicRecords(cD_miamigov.com, or regular email at City of Miami Office of the City Attorney, 444 SW 211 Avenue, 9th FL, Miami, FL 33130. 12. Attorney's Fees. Each Party shall be responsible for its own attorney's fees incurred in connection with any legal action that arises from this agreement. Page 4 of 13 13. Insurance. Prior to, or on the date commencing the effective term of this Agreement, TPL's insurance agent(s) shall provide, as applicable, to the City's Risk Management Department original certificates of Insurance naming the City as an additional insured and the certificate holder on all applicable policies. Failure by the Programing Partner to comply with this Section and Exhibit D of this Agreement shall be a material breach of this Agreement. The City will not disburse any funds under this Agreement until all required Certificates of Insurance have been provided to and have been approved by the City, as set forth in Exhibit D. 14. Independent Status. This agreement is by and between City and TPL. It is not intended and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture or association as between City and TPL. TPL understands and agrees to bear the sole responsibility and liability for furnishing Workers' Compensation benefits to any person for injuries arising from or connected with services performed on behalf of TPL pursuant to this agreement. 15. Notices. Notices desired or required by this Agreement or by any law now or hereinafter in effect are deemed given when sent by U.S. Postal Service First Class Mail or by a reliable over -night courier with postage or charges prepaid if to TPL as follows: Peter Fodor, Division Legal Director The Trust for Public Land 306 N. Monroe Street Tallahassee, Florida 32301 p. (850) 222-7911 x 29 City as follows: Department of Parks and Recreation Attention: Director 444 SW 2nd Avenue, 8th Floor Miami, FL 33130 Page 5 of 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above. AUTHORIZED REPRESENTATIVE Name: Title: Date: CITY OF MIAMI, a municipal Corporation of the State of Florida Daniel J. Alfonso Date: City Manager APPROVED AS TO INSURANCE REQUIREMENTS The Trust For Public Land 101 Montgomery Street, 91h Floor, San Francisco, California a California not-for-profit corporation ATTEST: Name: Title: Corporate Seal: ATTEST: Todd Hannon City Clerk Date: Date: APPROVED AS TO FORM AND CORRECTNESS: Ann -Marie Sharpe Date: Victoria Mendez Risk Management City Attorney Page 6of13 Date:. Exhibits: Exhibit A -, Right of Entry Permit Exhibit B — Equipment Warranty Exhibit C — Final Acceptance and Assignment of Warranty Exhibit D — Insurance Requirements Exhibit E — Location of Fitness Zone in Jose Marti Park and Photos of the Equipment Page 7 of 13 EXHIBIT A [Attach Right of Entry Permit] Page 8 of 13 EXHIBIT B [Attach Warranty Here] Page 9of13 EXHIBIT C Date City of Miami 444 SW 21d Avenue Miami, FL 33130 Attn: City Manager RE: FINAL ACCEPTANCE and ASSIGNMENT OF WARRANTY Dear Friends: This Assignment of Warranty ("Assignment") is made with reference to that certain Warranty Certificate ("Warranty") (attached hereto as Exhibit A) issued by Greenfield Sport Parks, Inc. ("Seller") for equipment purchased by The Trust for Public Land ("TPL") in connection with TPL's Fitness Zones project (the "Equipment"). In connection with the City of Miami (the "City") acceptance of the Equipment (the "Final Acceptance") installed at 351 Southwest 4th Avenue, Miami, Florida, owned/managed by the City, TPL, as purchaser of the equipment is hereby assigning the Warranty to the City. The City hereby accepts this assignment and agrees to assume responsibility for the maintenance, repair, replacement of the Equipment and liability for public use of the Equipment pursuant to the terms of the Agreement for Acceptance of Fitness Zone Equipment at City of Miami. City has delivered to TPL a fully executed Agreement for Acceptance of Fitness Zone Equipment at City of Miami. Such delivery, along with City's signature below, shall constitute City's Final Acceptance of the Equipment and City's agreement to abide by the terms of the Warranty. Page 10 of 13 ASSIGNOR: The Trust for Public Land, a California nonprofit corporation Name: Title: Division Legal Director AGREED TO AND ACCEPTED BY: City of Miami, Florida in Name: , City Manager Date ATTEST: By: Name: Date APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez, City Attorney Page 11 of 1.3 Date EXHIBIT D (Replace this page with the Insurance Requirements and remove all references to this place holder) Page 12 of 13 (Replace this page with a map of Jose Marti Park which notes the planned location of the Fitness Zone, and photos of all the equipment will be installed) Page 13 of 13