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HomeMy WebLinkAboutExhibit-SUBCity of Miami, FL THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. GIFT AGREEMENT BETWEEN THE CITY OF MIAMI AND VAN ALEN INSTITUTE THIS GIFT AGREEMENT (the "Agreement") is made and entered into as of this day of , 2017, by and between the CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter referred to as "City"), and VAN ALEN INSTITUTE, a New York Section 501 (c ) (3), Internal Revenue Code recognized non-profit organization (hereinafter referred to as "VAI"), whose principal address is 30 West 22nd Street, New York, NY 10010 and who is authorized to do business in the State of Florida. . RECITALS: A. The City is the owner of the municipal park located at 351 SW 4t" Street, Miami, FL 33144 ("Jose Marti Park"). B. VAI is a non-profit organization that collaborates with communities, scholars, policymakers, and professionals on local and global initiatives to rigorously investigate the most pressing social, cultural, and ecological challenges of tomorrow. C. As a public benefit, VAI is donating their professional consulting services to the City, for the provision of advising, providing input, assisting with community engagement, and other services to assist the City with the design phase of Jose Marti Park ("The Park"). This design phase would involve developing a new general plan for the Park, taking into consideration increasing flood risks associated with sea level rise, unique cultural heritage of Little Havana, increasing use related to developments surrounding the park, and considering parking, transportation and access issues (the "Project"). The process will involve researching and analyzing site and contextual elements, identifying opportunities and constraints, engaging stakeholders and community residents, and providing recommendations on a phased approach for implementation. VAI's professional consulting services include, but are not limited to, assistance with the development of the City's request for qualifications (RFQ) to select the Design Team, assistance with community engagement, and other tasks as specified in Exhibit A, Scope of Services incorporated herein. D. In response to this request, VAI has agreed to gift the City approximately one -hundred and twenty thousand dollars ($120,000.00) in-kind services for the new general design of The Park. VAI will gift the City sixty thousand ($60,000.00) in monetary funds to solely be utilized to compensate the Selected Proposer, resulting from the City's RFQ, for the development of conceptual designs for the Project. Gifts are subject to the acceptance of the Miami City Commission in the manner provided by the laws of the City. E. The City has determined that the proposed approach for developing a new general plan for The Park and, specifically, designs for an enhanced shoreline along the Miami River that will improve the safety and welfare of the citizens of the City, 3089 Exhibit -SUB 1 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL and protect the natural environment and habitat, Florida fish and wildlife by creating designs that address the increasing flood risks associated with sea level rise and other long range impacts of climate change while enhancing access and enjoyment for the general public. F. The City has determined that the new design will primarily benefit the general public due to the requirement that The Park is for the accessibility and enjoyment of the general public during the park hours. NOW, THEREFORE, in consideration of the mutual covenants and promises herein, VAI and the City agree as follows: (1) Incorporation by Reference. The recitals set forth in the preamble to this Agreement are incorporated by reference as though set forth in full herein and made a part hereof. (2) Ownership of the Design. The parties agree that the City shall be the owner of the completed design, and all related preliminary design, design development and competitive solicitation related documents. (3) Insurance: Indemnity and Hold Harmless. A. VAI shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by the City. The insurance coverage(s) required as of the Effective Date of this Agreement are attached hereto as Exhibit "B" and incorporated herein by this reference. VAI shall add the City as an additional insured to its commercial general liability, and auto liability policies, and as a named certificate holder on all policies. VAI shall correct any insurance certificates as requested by the City's Risk Management Director. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and shall be furnished to the City Risk Management Director on Certificates of Insurance indicating such insurance to be in force and effect and any cancelled or non -renewed policy will be replaced with no coverage gap and a current Certificate of Insurance will be provided. Completed Certificates of Insurance shall be filed with the City Risk Management Director prior to the performance of Services hereunder, provided, however, that VAI shall at any time upon request file duplicate copies of the Certificate of Insurance with the City. VAI understands and agrees that any and all liabilities regarding the use of any of VAI's employees or any of VAI's Subcontractors for Services related to this Agreement shall be borne solely by VAI throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. VAI further understands and City of Miami, FL THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. agrees that insurance for each employee of VAI and each Subcontractors providing Services related to this Agreement shall be maintained in good standing and approved by the City's Risk Management Director throughout the duration of this Agreement. VAI shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, VAI shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Director, or designee as soon as coverages are bound with the insurers. In the event that expired certificates are not replaced, with new or renewed certificates which cover the term of this Agreement and any extension thereof: (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Director; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek re -procurement damages from VAI in conjunction with the violation of the terms and conditions of this Agreement. Compliance with the foregoing requirements shall not relieve VAI of its liabilities and obligations under this Agreement. VAI shall require its subcontractors, or consultants to comply with City insurance requirements as noted in Exhibit B, including, but not limited to Professional Liability Coverage as it relates to this Agreement. B. Hold Harmless and Indemnity. VAI, its successors and assigns shall indemnify, defend and hold/save harmless, and defend at its own cost and expense, and further covenant not to sue , the City and its officials, agencies and instrumentalities, employees and agents (collectively referred to as "Indemnitees") and each of them , through administrative, trial, appellate , mediation arbitration and other proceedings, from and against all actions, loss, costs, penalties, fines, damages, claims, expenses (including, without limitation, attorney's fees) or any such liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be 3 City of Miami, FL THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of VAI or its employees, agents or subcontractors (collectively referred to as "VAI"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of VAI to comply with any of the paragraphs herein or the failure of VAI to conform to statutes, ordinances, codes , rules, resolutions, or other regulations or requirements of any governmental authority, local (City / County), federal or state, in connection with the solicitation, selection, award, performance of this Agreement or (iii) any private or public contract, grant, commercial or property rights or similar statutory or civil claims, causes of actions, or actions by any person including, without limitation VAI its affiliates or subsidiaries. VAI further expressly agrees to indemnify and save/ hold harmless and defend at its own cost and expense, the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of VAI, or any of its subcontractors, as provided above, for which the VAI's liability to such employee or former employee would otherwise be limited to payments under state Workers' or Unemployment Compensation, Family Medical Leave Act, or similar laws. VAI further acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Area or Property, VAI, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from VAI's use of the Area or Property or from any contractual or private property rights or similar civil actions or claims for which the VAI shall have no recourse against the Indemnitees. This Section B shall survive the cancellation/expiration of this Agreement. VAI acknowledges that the granting of this Agreement is separate, distinct and sufficient consideration for this Indemnity/ Hold Harmless / Duty to Defend and Covenant not to Sue. This Section shall survive the cancellation or expiration of this Agreement. (4) Public Records A. VAI 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. VAI's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 4 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL B. VAI 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 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 that must be provided to the City in a format compatible with the City's information technology systems. Notwithstanding the foregoing, VAI shall be permitted to retain any public records that make up part of its work product solely as required for archival purposes, as required by law, or to evidence compliance with the terms of the Agreement. C. Should VAI determine to dispute any public access provision required by Florida Statutes, then VAI shall do so at its own expense and at no cost to the City. VAI may maintain an exemption for such personal information such as Social Security Numbers of members or medical information exempted by general law. IF THE VAI HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE VAI'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT (305) 416-1830, Via email at PublicRecords@miamigov.com, or regular email at City of Miami Office of the City Attorney, 444 SW 2nd Avenue, 9th FL, Miami, FL 33130. (5) Miscellaneous A. Term. Unless earlier cancelled by the City, the term of this Agreement shall commence on the date it is fully executed by the parties and shall terminate upon the completion of the Project, hereby defined as the date when the construction of the Jose Marti Park Project has been completed or on the date the passage of five (5) years from date of execution, whichever is earliest. B. Enforcement. The provisions of this Agreement may be enforced by all appropriate actions in law and in equity by any party to this Agreement, or fee simple owners of The Park. In order to expedite the conclusion of the actions brought pursuant to this Agreement, the parties, their 5 City of Miami, FL THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. successors and assigns will not demand jury trial nor file permissive counterclaims outside the bounds of this Agreement in such actions. C. Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which when taken together shall be deemed to be one and the same instrument. D. City Officials. The "City" is a municipal corporation, and the City Manager as its Chief Administrative Officer, is empowered to make all decisions with regard to this Agreement on behalf of the City, unless otherwise provided by this Agreement, by law, or by resolution of the City Commission. E. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the fee owner of the The Park and its successors and assigns. This Agreement may not be assigned, sold, pledged, hypothecated or encumbered, in whole or in part. F. Construction. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation hereof. All of the parties to this Agreement have participated fully in the negotiation of this Agreement, and accordingly, this Agreement shall not be more strictly construed against any one of the parties hereto. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. G. Notices. Any and all notices required or desired to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand (including recognized overnight courier services, such as Federal Express) or three (3) business days after deposit in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to the recipient at the address for such party set forth in the introductory paragraph to this Agreement (or to such other address as any party hereunder shall hereafter specify to the other in writing). 6 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL TO CONTRACTOR: Jessica Lax Director of Competitions Van Alen Institute 30 West 22nd Street, New York, NY 10010 TO THE CITY: Daniel J. Alfonso City Manager 444 SW 2nd Avenue, 10th Floor Miami, FL 33130 Victoria Mendez City Attorney 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 Annie Perez, CPPO Procurement Director 444 SW 2nd Avenue, 6th Floor Miami, FL 33130-1910 Jane Gilbert Chief Resilience Officer 444 S.W. 2nd Avenue, 10th FL Miami, Florida 33130 H. Severability. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed in full force and effect. Exhibits. All of the Exhibits attached to this Agreement are incorporated in, and made a part of, this Agreement. J. Amendments; Termination. This Agreement may not be amended, modified or terminated except by termination or cancellation by the City, or expiration of its stated term, as applicable. Further, no modification or amendment, excepting a termination by the City, shall be effective unless in writing and executed by the parties, employing the same formalities as were used in the execution of this Agreement. K. Compliance With Federal, State And Local Laws: VAI understands that agreements with local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and VAI agree to comply with and observe all such applicable federal, state and local laws, rules, regulations, codes and ordinances, as they may be amended from time to time. THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL VAI further agrees to include in all of its agreements with Subcontractor for any Services related to this Agreement this provision requiring Subcontractors to comply with and observe all applicable federal, state, and local laws rules, regulations, codes and ordinances, as they may be amended from time to time. L. Default. Termination for Cause. In the event of a default, which is not cured within sixty (60) days following the date of a written notice mailed as provided in Section 11 herein, the parties shall have all rights and remedies provided by law or equity. As may be determined at the option of and by the City Manager, if any default is not cured by VAI or if VAI does not comply with any material terms, covenants or condition provided herein within sixty (60) days from the date of written notice from the City Manager; or when, in the opinion of the City Manager or the City Commission, termination is necessary to protect the interests of public health, safety or general welfare. This subsection shall not apply during any period of Force Majeure extension pursuant to §12(a). The City Manager shall grant one extension of not more than sixty (60) additional days in total if such failure to cure is due to Force Majeure as that term is interpreted under Florida law. ii. Termination for Lack of Funding, etc. This Agreement and/or the City's funding and all other obligations under the Agreement may be terminated, for lack of funding, change in laws, resolutions, or program regulations affecting the program, failure to allocate sufficient unencumbered funds to continue this work, within sixty (60) days from the date written notice from the City Manager, or when in the opinion of the City Commission, termination is necessary to protect the interests of public health, safety or general welfare. iii. Termination for Convenience. The City Manager may terminate this Agreement, in whole or in part, upon thirty (30) days prior written notice when it is in the best interest of the City. iv. VAI fails to obtain or maintain the insurance or bonding herein required. V. A mechanics, laborers or similar lien is placed upon the completed project or any other City owned property due to actions of VAI, and is not contested, bonded, or discharged by VAI within thirty (30) days of its recordation. E' THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL vi. VAI fails to comply, in a substantial or material sense, with any of its duties under this Agreement or any Agreement it has with the City arising by virtue of this Agreement, and said failure continues beyond sixty (60) days from the date of written notice from the City Manager regarding such failure. vii. VAI shall have no recourse from a termination made by the City in accordance with this Section B except to retain the work product, funds (if applicable) (already provided or disbursed , as applicable, in full and final settlement of any claim, action, demand, cost, charge or entitlement it may have, or will, have against the City, its officials or employees. M. Covenants Running with the Land. It is intended that the terms, conditions, covenants, rights, obligations and burdens set forth in this Agreement, shall run with the title to The Park. N. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, both oral and written, between the parties with respect thereto. O. Governing Law; Venue; Attorney's Fees. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Florida. Venue for all actions under this Agreement shall be in Miami - Dade County, Florida. In any actions, claims, or proceedings between the parties each party shall bear their own attorney's fees. P. No Joint Venture or Third -Party Beneficiaries. VAI is an independent contractor and is not an agent, joint venture, partner or affiliate of the City, nor can the City be bound to honor any obligation or duty of VAI, except as expressly provided herein. Neither the City nor VAI intends to directly or substantially benefit a third -party by this Agreement. Therefore, the parties agree 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. Q. No Discrimination. VAI represents and warrants that there shall be no unlawful discrimination as provided by federal, state or local law, in connection with its performance under this Agreement. 9 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL R. Authority of VAI Signatories. The undersigned officers executing this Agreement on behalf of VAI has authority pursuant to corporate resolutions on file with the City, and all applicable laws of the State of Florida to act on behalf of and bind VAI to every condition, covenant and duty set forth herein. S. Audit Rights. The City shall have all audit rights as are provided by 18- 102 of the City Code, which is deemed as being incorporated by reference herein, VAI agrees to keep all financial records pertaining to or related to this Agreement at its offices in Miami- Dade County for the term of this Agreement and for three (3) years thereafter. At the City requests, VAI shall deliver to the City such written statements as relate to its use of the Funding Amount as the City may reasonably require. The City shall have the right to conduct audits of VAI's records pertaining to the Funding Amount, in order to conduct any monitoring or evaluation activity it deems prudent. VAI will cooperate with the City in the performance of these activities. VAI's failure to comply with these requirements or the receipt by the City of any inconsistent, incomplete or inadequate information shall be grounds for immediate termination of this Agreement by the City. The City shall have such inspection rights relative to the Project as are provided by 18-101 of the City Code, which is deemed as being incorporated by reference herein. 10 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. ATTEST: Todd B. Hannon, City Clerk ATTEST: By: Print Name: Title: (Corporate Seal) APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez City Attorney "City" CITY OF MIAMI, a municipal corporation By: Daniel J. Alfonso, City Manager "Van Alen Institute" By: Print Name: Title: (Authorized Corporate Officer) 11 APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe Risk Management Director THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL " EXHIBIT "A" SCOPE OF SERVICES A. The Van Alen Institute ("VAI") shall: 1. Provide the City with in-kind services valued at approximately $160,000 $120,000 for the support to the conceptual design phase of the Project, and $60,000 in monetary funds to be used to compensate the Selected Proposer from the City's Request for Qualifications (RFQ) process, for development of conceptual designs. 2. Assist the City and provide input as to the solicitation, specifically as it relates to the Scope of Work ("SOW") for the conceptual design phase of the RFQ. 3. Assist the City with publicize the RFQ to generate more competition, tapping into VAI's network of over 14,000 firms worldwide 4. Submit to the City, a recommendation for one (1) Evaluation/Selection Committee member to be a part of the RFQ selection process. 5. Co -host with the City, weekly calls with the Selected Proposer to develop a design that incorporates flood protection and adaptive sea -level rise protection into a park redesign. VAI will be active in helping push the Selected Proposer to create innovative solutions during the conceptual design phase. 6. Assist the City, with City advisement, to establish a "peer review" team with field experts (architects, park/landscape designers, resiliency and sea -level rise experts, scientists, etc.) to provide feedback to the City and Selected Proposer, regarding the conceptual design for the Project. The "peer reviews" will be coordinated with the City and occur at two points during the conceptual design phase 7. Lead, with guidance from the City, the community outreach process. The community outreach process will be developed with the City. VAI's community engagement process may include paying members to help pass out flyers, spread the word, and help with other logistics, but participation in all conversations and meetings will be open to the general public. B. The City of Miami ("City") will: Pay the Selected Proposer a minimum of $60K, to be allocated from the gift amount, based on work invoiced, during the conceptual design phase. The City will be responsible for any funding in excess of $60,000 for Phase 1, Conceptual Design, subject to allocations, appropriations and budgetary approval and compliance with applicable provisions of the City Code. 2. Provide VAI with appropriate credit to be memorialized in the form of inclusion in the pre -construction signage, inclusion in any ribbon -cutting ceremony, and on-site signage on the Project's structure once the Project has been constructed. 12 City of Miami, FL THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. EXHIBIT "B" INSURANCE REQUIREMENTS PROFESSIONAL SERVICES AGREEMENT GIFT AGREEMENT VAI Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required City of Miami listed as additional insured Contingent & Contractual Liability Premises and Operations Liability Primary Insurance Clause Endorsement Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos $1,000,000 $2,000,000 $1,000,000 $1,000,000 Including Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit 13 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL. BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT. City of Miami, FL IV. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim $1,000,000 General Aggregate Limit $1,000,000 Retro Date Included The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A2 as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 14 City of Miami, FL SUBSTITUTED GIFT AGREEMENT BETWEEN THE CITY OF MIAMI AND VAN ALEN INSTITUTE THIS GIFT AGREEMENT (the "Agreement") is made and entered into as of t s day of 2017, by and between the CITY OF MIAMI, a municip corporation of the State of Florida (hereinafter referred to as "City"), and VAN ALEN STITUTE, a New York Section 501 (c ) (3), Internal Revenue Code recognized non- ofit organization (hereinafter referred to as "VAI"), whose principal address is 30 We 22nd Street, New York, NY 10010 and who is authorized to do business in the State Florida. . RECITALS: A. The City is the owner of the municipal park Iq/ated at 351 SW 4th Street, Miami, FL 33144 ("Jose Marti Park"). B. VAI is a non-profit organization tha collaborates with communities, scholars, policymakers, and professionals on loca and global initiatives to rigorously investigate the most pressing social, cultural, and cological challenges of tomorrow. C. As a public benefit, VAI is don ing their professional consulting services to the City, for the provision of advising, roviding input, assisting with community engagement, and other services to assis he City with the design phase of Jose Marti Park ("The Park")./lopment design phase ould involve developing a new general pian for the Park, taking insideration in easing flood risks associated with sea level rise, unique cultural heof Little avana, increasing use related to developments surrounding the pnd consi ring parking, transportation and access issues (the "Project"). The prwill i olve researching and analyzing site and contextual elements, identifyppo nities and constraints, engaging stakeholders and community residend providing recommendations on a phased approach for implementation. Vr essional consulting services include, but are not limited to, assistance with thelopment of the City's request for qualifications (RFQ) to select the Design Team, nce with community engagement, and other tasks as specified in Exhibit A, Scopervices incorporated herein. /neeneral I response to the City's request, VAI has agreed to gift the City apone-hundred and twenty thousand dollars ($120,000.00) in-kind services forneral design of The Park. VAI will gift the City sixty thousand dollars ($6n monetary funds to solely be utilized to compensate the Selected Prolting from the City's RFQ, for the development of conceptual designs for theifts are subject to the acceptance of the Miami City Commission in the mad by the laws of the City. / E. The City has determined that the proposed approach for developing a new general plan for The Park and, specifically, designs for an enhanced shoreline along the Miami River, will improve the safety and welfare of the citizens of the City, and protect the 1 City of Miami, FI_ SUBSTITUTED natural environment and habitat, Florida fish and wildlife by creating designs that address the increasing flood risks associated with sea level rise and other long range impact/ climate change while enhancing access and enjoyment for the general public. F. The City has determined that the new design will primarily ben/it the general public due to the requirement that The Park is for the accessibility andI oyment of the general public during the park hours. G. The City represents that its present intention is/as the selected Respondent as defined below, in accordance with applicable Regulations, and funding allocations for the implementation of the general park prepared by the Selected Respondent, and that the City will act in gpursue such engagement of Selected Respondent. This is not to be interpresently made guarantee of any future course of action by the City. NOW, THEREFORE, in consideration of the mI covenants and promises herein, VAI and the City agree as follows: (1) Incorporation by Reference. The recita set forth in the preamble to this Agreement are incorporated by reference as thou set forth in full herein and made a part hereof. (2) Ownership of the Oesign, Prior to the design development phase, the ownership shall b subject to collaborative comment which for purposes of this Agreeme shall be owned by the designer and will be available for the public e. Designs submitted or created prior to the completion of the conc tual design phase will be licensed as CC BY -NC - SA. Attribution -Non Vnmercial-Share Alike license, Version 3.0 as defined here htt s://cre ivecommons.org/licenses/by-nc-sa/3.0/. Following the conclusio/of e conceptual design phase, the parties agree that the City shall be ner of the completed design, and all related preliminary design,development and competitive solicitation related documents. (3) Insur ce: Indemnity and Hold Harmless. A. VAI shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by the City. The insurance coverage(s) required as of the Effective Date of this Agreement are attached hereto as Exhibit "B° and incorporated herein by this reference. VAI shall add the City as an additional insured to its commercial general liability, and auto liability policies, and as a named certificate holder on all policies. VAI shall correct any insurance certificates as requested by the City's Risk Management Director. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and shall be furnished to the City Risk Management Director on Certificates of Insurance indicating such 2 City of Miami, FL SUBSTITUTED insurance to be in force and effect and any cancelled or non -renewed policy will be replaced with no coverage gap and a current Certificat of Insurance will be provided. Completed Certificates of Insurance s II be filed with the City Risk Management Director prior to the performance of Services hereunder, provided, however, that V shall at any time upon request file duplicate copies of the Ce i icate of Insurance with the City. VAI understands and agrees that any and all liabilitie regarding the use of any of VAI's employees or any of VAI's S contractors for Services related to this Agreement shall be bo e solely by VAI throughout the term of this Agreement and tha this provision shall survive the termination of this Agreement. VAI f her understands and agrees that insurance for each employ e of VAI and each Subcontractors providing Services related this Agreement shall be maintained in good standing and ap oved by the City's Risk Management Director throughout the d ation of this Agreement. VAI shall be responsible for asswd g that the insurance certificates required under this Agreement r ain in full force and effect for the duration of this Agreement, ' cluding any extensions hereof. If insurance certificates are sc duled to expire during the term of this Agreement and any exte ion hereof, VAI shall be responsible for submitting new or rene d insurance certificates to the City's Risk Management Director, r designee as soon as coverages are bound with the insurers. In t event that expired certificates are not replaced, with new or renewe certificates which cover the term of this Agreement and any extensio thereof: (i) the City s II suspend this Agreement until such time as the new or renewe certificate(s) are received in acceptable form by the City's Risk anagement Director; or (ii) th City may, at its sole discretion, terminate the Agreement for cruse.. Compliance with the foregoing requirements shall not relieve VAI of its liabilities and obligations under this Agreement. VAI shall require its subcontractors, or consultants to comply with City insurance requirements as noted in Exhibit B, including, but not limited to Professional Liability Coverage as it relates to this Agreement. B. Hold Harmless and Indemn VAI, its successors and assigns shall indemnify, defend and hold/save harmless, at its own cost and expense, and further covenant not to sue 3 SUBSTITUTED City of Miami, FL , the City and its officials, agencies and instrumentalities, employees and agents (collectively referred to as "Indemnitee/aa d each of them , through administrative, trial, appellate , mediatibitration and o er proceedings, from and against all actions, losss, penalties, i es, damages, claims, expenses (including, withoitation, at rney's fees) or any such liabilities (collectively referreas "Liabi ' ies") by reason of any injury to or death of any peor da age to or destruction or loss of any property arising out suIti from, or in connection with (i) the performance or non-perfce f the services contemplated by this Agreement which is or is to be directly orindirectly caused, in whole or in part,by any aission, default ornegligence (whether active or passive) of VAI omployees, agentsor subcontractors (collectively referred to asI"), regardless of whether it is, or is alleged to be, caused in w e or part (whether joint, concurrent or contributing) by any act, ami ion, default or negligence (whether active or passive) of the Indemni es, or any of them or (ii) the failure of VAI to comply with any of the ragraphs herein or the failure of VAI to conform to statutes, ordinan es, codes , rules, resolutions, or other regulations or requirements o any governmental authority, local (City / County), federal or state in connection with the solicitation, selection, award, performance this Agreement or (iii) any private or public contract, grant, comm ial or property rights or similar statutory or civil claims, causes of a ions, or actions by any person including, without limitation VAl its iliates or subsidiaries. VAI further expressly agrees to indemnify an ave/ hold harmless and defend at its own cost and expense, the In mnitees, or any of them, from and against all liabilities which may e asserted by an employee or former employee of VA1, or any of its bcontractors, as provided above, for which the VAI's liability to such ployee or former employee would otherwise be limited to payments nder state Workers' or Unemployment Compensation, Family Me al Leave Act, or similar laws. VAI furt r acknowledges that, as lawful consideration for being granted the ri t to utilize and occupy the Area or the Park as defined in this Agr meat VAI, on behalf of himself, his agents, invitees and e ployees, does hereby release from any legal liability the City, its fficers, agents and employees, from any and all claims for injury, death or property damage resulting from VAI's use of the Area or Property or from any contractual or private property rights or similar civil actions or claims for which the VAI shall have no recourse against the Indemnitees. This Section B shall survive the cancellation/expiration of this Agreement, VAI acknowledges that the granting of this Agreement is separate, distinct and sufficient consideration for this Indemnity/ Hold Harmless 1 Duty to Defend and Covenant not to Sue. This Section shall survive the cancellation or expiration of this Agreement. 4 SUBSTITUTED City of Miami, FL (4) Public Records A. VAI understands that the public shall have access, at all reasona e times, to all documents and information pertaining to Ci/sject ts, subject to the provisions of Chapter 119, Florida Statutes to allow access by the City and the public to afl documto disclosure under applicable laws. VA1's failure or refusaith the provisions of this section shall result in the immediaon of this Agreement by the City. B. VAI shall additionally comply with Section 11 9.070 , Florida Statutes, including without limitation: (1) keep and maintai public records that ordinarily and necessarily would be required by e City to perform this service; (2) provide the public with access to p lic records on the same terms and conditions as the City would at th cost provided by Chapter 119, Florida Statutes, or as otherwise pro ded by law; (3) ensure that public records that are exempt or nfidential and exempt from disclosure are not disclosed except a authorized by law; (4) meet all requirements for retaining public re c rds and transfer, at no cost, to the City all public records in its p session upon termination of this Agreement and destroy any du cate public records that are exempt or confidential and exempt from sclosure requirements; and, (5) provide all electronically stored pub ' records that must be provided to the City in a format compatible wi the City's information technology systems. Notwithstanding the fo going, VAI shall be permitted to retain any public records that m e up part of its work product solely as required for archival pumos , as required by law, or to evidence compliance with the terms of e Agreement. C. Should VAI dermine to dispute any public access provision required by Florida atutes, then VAI shall do so at its own expense and at no /S, City. VAI may maintain an exemption for such personal i n such as Social Security Numbers of members or medical n exempted by general law. IF THE VAI HAS QUESTIONS NG THE APPLICATION OF CHAPTER 119, FLORIDA S, TO THE VAT'S DUTY TO PROVIDE PUBLIC RECORDS TO THIS CONTRACT, CONTACT THE CUSTODIAN OF RECORDS AT (305) 416-1830, Via email at ords@miamigov.com, or regular email at City of Miami Office of the City Attorney, 444 SW 2nd Avenue, 9th FL, Miami, FL 33130. (5) Miscellaneous. A. Term. Unless earlier cancelled by the City, the term of this Agreement shall commence on the date it is fully executed by the parties and shall 5 City of Miami, FL -] SUBSTITUTED terminate upon the completion of the Project, or on the date the passage of two (2) years from date of execution, whichever is earlies/ B. Enforcement. The provisions of this Agreement may be enforced y all appropriate actions in law and in equity by any party to this Agr ment, or fee simple owners of the Park. In order to expedite the c nclusion of the actions brought pursuant to this Agreement, the p rties, their successors and assigns will not demand jury trial nor fi permissive counterclaims outside the bounds of this Agreement in uch actions. C. Counterparts. This Agreement may be executed n any number of counterparts and by the separate partiesereto in separate counterparts, each of which when taken tog et r shall be deemed to be one and the same instrument. D. City Officials. The "City" is a municipal corp ation, and the City Manager as its Chief Administrative Officer, is enAowered to make all decisions with regard to this Agreement on be If of the City, unless otherwise provided by this Agreement, by w, or by resolution of the City Commission. E. Successors and Assigns. Thi Agreement shall inure to the benefit of and be binding upon the fe owner of the Park and its successors and assigns. This Agreeme may not be assigned, sold, pledged, hypothecated or encu ered, in whole or in part. F. Construction. The s tion headings contained in this Agreement are for reference purl s only and shall not affect the meaning or interpretation reof. All of the parties to this Agreement have participated f yin the negotiation of this Agreement, and accordingly, this/ipiartie nt shall not be more strictly construed against any one of thereto. in construing this Agreement, the singular shall be hele the plural, the plural shall be held to include the singular, ande to any particular gender shall be held to include every othgenders. G. Vtices. Any and all notices required or desired to be given hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand (including recognized overnight courier services, such as Federal Express) or three (3) business days after deposit in the United States mail, by registered or certified mail, return receipt requested, postage prepaid, and addressed to the recipient at the address for such party set forth below (or to such other address as any party hereunder shall hereafter specify to the other in writing). 6 SUBSTITUTED City of Miami, FL TO CONTRACTOR: David Van der Leer Executive Director Van Alen Institute 30 West 22nd Street, New York, NY 10010 H. Attribution TO THE CITY: Daniel J. Alfonso City Manager 444 SW 2n6 Avenue, IOt" FI r Miami, FL 33130 With Copy to/Anue, Victoria Men City Attorney 444 S.W. 2ndSuite 945 Miami, Florid Annie Pe z, CPPD Pro cur ent Director 444 2nd Avenue, 6t" Floor Mi i, FL 33130-1910 Jane Gilbert Chief Resilience Officer 444 S.W. 2nd Avenue, 10th FL Miami, Florida 33130 VAI reserves the r4ht to review and approve any items produced by the City of Miato the Project and/or that mentions or credits VAI or the Project eit r in name, or with the organization's logo. All written nd oral or public references issued in connection with the Project I make reference to the respective roles of VAI and the City, and an to have the logos of both the City of Miami and VAI, where appr riate. VAI reserves the right to include logos of any other fo dation, municipal or corporate contributors to the project. VAI shall be credited as a co-producer of the RFP, as well as in press releases, brochures, and all promotional materials. Example language provided below: A project of Van Alen Institute. Severability. In the event any term or provision of this Agreement is determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as deleted as such authority determines, and the remainder of this Agreement shall be construed in full force and effect. SUBSTITUTED City of Miami, FL 1 Exhibits. All of the Exhibits attached to this Agreement are incorpora in, and made a part of, this Agreement. K. Amendments; Termination. This Agreement may not /ameed, modified or terminated except bytermination or cancellatiity, or expiration of its stated term, as applicable. Further, ntion or amendment, excepting a termination by the City, shative unless in writin and executed b the arties em tome formalities as were used in the execution of this Agree ent. L. Compliance With Federal, State And Local Laws: V understands that agreements with local governments are subjec o certain laws and regulations, including laws pertaining to pub - records, conflict of interest, record keeping, etc. City andVAI ree to comply with and observe all such applicable federal, st and local laws, rules, regulations, codes and ordinances, as th may be amended from time to time. VAI further agrees to include in all oe-,rs agreements with Subcontractor for any Services related to this eement this provision requiring Subcontractors to comply w/�d observe all applicable federal, state, and local laws rules, regulcodes and ordinances, as they may be amended from time to ti M. Default. Termination for use. In the event of a default, which, includes without Iimitatio , if VAI fails to comply, in a substantial or material sense, with a of its duties under this Agreement or any Agreement it has with t City arising by virtue of this Agreement, and said failure continues eyond sixty (60) days from the date of written notice from the City anager regarding such failure. If sa/ failure is not cured within sixty (60) days following the date of a ritten notice mailed as provided in Section G herein, the parties Op6all have all rights and remedies provided by law or equity. As may be determined at the option of and by the City Manager, if any default is not cured by VAI or if VAI does not comply with any material terms, covenants or condition provided herein within sixty (60) days from the date of written notice from the City Manager; or when, in the opinion of the City Manager or the City Commission, termination is necessary to protect the interests of public health, safety or general welfare. This subsection shall not apply during any period of Force Majeure extension pursuant to this section. The City Manager shall grant one extension of not more than sixty (60) additional days in total if such failure to cure is due to Force Majeure as that term is interpreted under Florida law. 8 SUBSTITUTED City of Miami, FL ii. Termination for Lack of Funding, etc. This Agreement and/or the City's funding and all other obligations under the Agreement may b terminated, for lack of funding, change in laws, resolutions or program regulations affecting the program, failure to all cate sufficient unencumbered funds to continue this work, within s' y (66) days from the date written notice from the City Manager, when in the opinion of the City Commission, termination is n essary to protect the interests of public health, safety or general elfare. iii. Termination for Convenience. The City Manager y terminate this Agreement, in whole or in part, upon thirty (30 days prior written notice when it is in the best interest of the City. iv. VAI shall have no recourse from a termin ion made by the City in accordance with this Section iii except retain the work product, funds (if applicable) (a/ae ided r disbursed , as applicable, in full and final settlemlai action, demand, cost, charge or entitlement it may h, ave against the City, its officials or employees. V. Termination of the City terminate this Agreement in the scenario that the City os to release an RFP for the resilient redesign of Jose Marti eight (S) months of the execution of this contract. N. Covenants Runnint conditions, covena Agreement, shallyt ith the Land. It is intended that the terms, s, rights, obligations and burdens set forth in this n with the title to the Park. Q. Entire AcireenAnt. This Agreement constitutes the entire agreement between th parties with respect to the subject matter hereof and supersed all prior agreements, understandings and arrangements, both or and written, between the parties with respect thereto. P. GovZrninq Law Venue; Attorney's Fees. This Agreement shall be c strued in accordance with, and governed by, the laws of the State Florida. Venue for all actions under this Agreement shall be in Miami - Dade County, Florida. In any actions, claims, or proceedings between the parties each party shall bear their own attorney's fees. Q. No Joint Venture or Third -Party Beneficiaries. VAI is an independent contractor and is not an agent, joint venture, partner or affiliate of the City, nor can the City be bound to honor any obligation or duty of VAI, except as expressly provided herein. Neither the City nor VAI intends to directly or substantially benefit a third -party by this Agreement. Therefore, the parties agree there are no third -party beneficiaries to this Agreement and that no third -party shall 9 SUBSTITUTED City of Miami, FL be entitled to assert a claim against either of them based upon this Agreement. R. No Discrimination. VAI represents and warrants that there s/aw, unlawful discrimination as provided by federal, state or lo connection with its performance under this Agreement. S. Authority of VAI Signatories. The undersigned officers ecuting this Agreement on behalf of VAI has authority pursua to corporate resolutions on file with the City, and all applicable la sof the State of Florida to act on behalf of and bind VAI to every ndition, covenant and duty set forth herein. T, Audit Rights. The City shall have all audit rig s as are provided by 18- 102 of the City Code, which i/thre3) s being incorporated by reference herein, VAI agrees to ncial records pertaining to or related to this Agreement at itiami- Dade County for the term of this Agreement and for rs thereafter. At the City requests, VAI shall deliver to theritten statements as relate to its use of the Funding Amountmay reasonably require. SUBSTITUTED City of Miami, FL IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and above written. ATTEST: Todd B. Hannon, City Clerk ATTEST: By: Print Name: air Title: Title:��'� "City" CITY OF MIAMI, a munici al corporation Daniel J. Alfon , City Manager "Van Alen stitute" (Corporate Seal) YIFE! Notary Public, S e of New York Reg. No. E6319993 Qualified ' Kings County fiWly comma ' n Expires 02123/2999 APPROVED AS TO LE L FORM AND CORRECTNESS' Victoria Mend City Attorney Qqv Pr_int_Namle. Title: (Authorized Corporate Officer) APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe Risk Management Director 11 City of Miami, FL SUBSTITUTED EXHIBIT "A" SCOPE OF SERVICES A. The Van Alen Institute ("VAI") shall: 1. Provide the City with in-kind services valued at approximately 160,000 for the support to the conceptual design phase of the ProjectyfdeElopment nd $60,000 in monetary funds to be used to compensate the Selecter from the City's Request for Qualifications (RFQ) process, of conceptual designs. 2. Assist the City and provide input as to the solicitation specifically as it relates to the Scope of Work ("SOW") for the conceptual d sign phase of the RFQ. 3. Assist the City with publicize the RFQ to gener e more competition, tapping into VAI's network of over 14,000 firms worlds ' e 4. Submit to the City, a recommendation r one (1) Evaluation/Selection Committee member to be a part of the R selection process. 5. Co -host with the City, weekly calls wi the Selected Proposer to develop a design that incorporates flood protec on and adaptive sea -level rise protection into a park redesign. VAI will be a rve in helping push the Selected Proposer to create innovative solutions d ng the conceptual design phase. 6. Assist the City, with City advi ement, to establish a "peer review" team with field experts (architects, p kllandscape designers, resiliency and sea -level rise experts, scientists, c.) to provide feedback to the City and Selected Proposer, regarding th conceptual design for the Project. The "peer reviews" will be coordinated w' the City and occur at two points during the conceptual design phase 7. Lead, withguid ce from the City, the community outreach process. The community ou each process will be developed with the City. VAI's community engagemen process may include paying members to help pass out flyers, spread t word, and help with other logistics, but participation in all convers ions and meetings will be open to the general public. B. The Cyy of Miami ("City") will: Pay the Selected Proposer monthly based on work invoiced, a minimum of $60K during the conceptual design phase. 2. Provide VAI with appropriate credit to be memorialized in the form of inclusion in the pre -construction signage, inclusion in any ribbon -cutting ceremony, and on-site signage on the Project's structure once the Project has been constructed. 12 City of Miami, FL SUBSTITUTED INSURANCE REQUIREMENTS PROFESSIONAL SERVICES AGREEMENT GIFT AGREEMENT VAI Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required City of Miami listed as additional i ured Contingent & Contractual Liabilit Premises and Operations Liabity Primary Insurance Clause E dorsement H. Business Automobile Liability A. Limits of Liability 71,000,000 $2,000,000 $1,000,000 $1,000,000 Bodily Injury and P operty Damage Liability Combine/Hid, Sing Limit Owned/SAutos Including orrowed or Non -Owned Autos Any One $1,000,000 B. Endorsqfnents Required CiX of Miami listed as an additional insured III. Worke s Compensation Limit of Liability Vaivueto ry-State of Florida of Subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit 13 SUBSTITUTED City of Miami, FL IV. Professional Liability/Errors and Omissions Coverage Combined Single Limit Each Claim General Aggregate Limit Retro Date Included $1,000,0 $1,000,q The above policies shall provide the City of Miami with Yltten notice of cancellation or material change from the insurer in acc dance to policy provisions. Companies authorized to do business in the State of Fydrida, with the following qualifications, shall issue all insurance policies required abo The company must be rated no less tha/wand management, and no less than "Class W as to Financial Strength, by the n of Best's Insurance Guide, published by A.M. Best Company, Oldwick, Ner its equivalent. All policies and for certificates of insurance are subject to rverification by Risk Management prior to insurance approval.