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HomeMy WebLinkAboutExhibit - AgreementCITY OF MIAMI / UNDERLINE GRANT AGREEMENT This CITY OF MIAMI / UNDERLINE GRANT AGREEEMENT (the "Agreement"), made and entered into this day of , 2015 (the "Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida whose principal address is 444 SW 2nd Avenue, 10th Floor, Miami, Florida 33130 (the "City"), and the Parks Foundation of Miami -Dade, Inc., a Florida not-for-profit corporation, whose principal address is 275 NW 2nd Street, 5th Floor, Miami, Florida 33178 (the "Foundation"), is entered into as follows: RECITALS A. The Foundation, in conjunction with Friends of the Underline, a Florida not-for- profit corporation, is enl-lancing an approximately ten (10) mile long portion of the land consisting of the Miami -Dade County Metrorail right of way from Brickell Station (1001 SW 1" Avenue, Miami, Florida 33130) to Dadeland South Station (9150 Dadeland Boulevard, Miami, Florida 33156) to create an iconic linear park (the "Project"). B. The City wishes to facilitate the ei-ffiancement of the portion of the Project in the City's territorial limits as a city-wide park that draws patrons from the entire geographic area of the city by providing partial funding to the Foundation from impact fees. C. The Foundation has agreed to certain conditions, described below, to ensure that the City remains in compliance with the applicable law governing the collection and expenditure of impact fees. D. The City Commission, by Resolution No. R-15-0218, a copy of which is attached as Exhibit "A" hereto and made a part hereof, passed and adopted on May 14th, 2015, authorized the expenditure of impact fees for the Foundation, in an amount not to exceed Two Hundred Thousand Dollars ($200,000,00) for "Parks and Recreation System Improvements" pursuant to § 13-5 of the City Code within the City's municipal boundaries (the "Grant"). Territorial boundaries has the same meaning as municipal boundaries and, for purposes of this Agreement, means within the City limits of the City of Miami. E. The City and the Foundation wish to enter into this Agreement to set forth the terms and conditions relating to the use of this Grant. NOW, THEREFORE, in consideration of the mutual promises of the parties contained herein and other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, the City and the Foundation agree as follows: 1. RECITALS. The Recitals of this Agreement are true and correct, and are incorporated herein by reference and made a part thereof. 2. GRANT. Subject to the terns and conditions set forth herein and the Foundation's compliance with all of its obligations hereunder, the City hereby agrees to make available to the Foundation the Grant, an amount not to exceed Two Hundred Thousand Dollars ($200,000.00) from the City's impact fees, to be used solely for the purpose and disbursed in the manner hereinafter provided. 3. USE OF GRANT. The Grant shall be used only for the design and construction of capital improvements, capital facilities, and capital equipment that add capacity to the City's park system exclusively for that portion of the Project within the City's territorial boundaries. No portion of the Grant shall be used for the reconstruction, refurbishment, or replacement of existing capital improvements, capital facilities, or capital equipment. Notwithstanding the abovementioned geographical restriction, the Grant may be used for costs attributable to design of the entire Project provided that the City's contribution to those costs under this Agreement does not exceed a pro -rata share of the portion of the Project within the City's territorial boundaries as compared to the Project as a whole. 4. TERM. The tern of this Agreement shall continence on the Effective Date and shall terninate upon the earlier of: a. Completion of the Project; or b. Two (2) years from the date of execution, whichever occurs last; or, c. Termination for any or no reason whatsoever by the City upon giving five (5) days written notice to the Foundation at which time the City shall be relieved of all obligations under this Agreement; or d. Earlier termination as provided in this Agreement. However, all rights of the City to audit, inspect, require reversion of funds, enforce representations and warranties, to avail itself of default remedies, and any limitation of liability and / or indemnification shall survive the -expiration or termination of this Agreement. 5. COMPLIANCE WITH APPLICABLE LAW. The Foundation understands that the use of this Grant is subject to specific reporting, recordkeeping, administrative, and contracting guidelines affecting the activities funded by the Grant. The Foundation agrees to comply with all applicable federal, state, and local laws, codes, rules, and regulations in connection with this Agreement. 6. RECORDS. The Foundation agrees to keep and maintain public records that ordinarily and necessarily would be required by the City in order to design and construct those allowed uses of the Grant pursuant to Section 3 of this Agreement (the "Records") and agrees to do the following: a. Provide the public with access to the Records on the same terms and conditions that the City would provide the Records and at a cost that does not exceed the cost provided in Ch. 119, Fla. Stat., as amended or as otherwise provided by law. b. Ensure that any Records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. c. Meet all requirements for retaining the Records and transfer, at no cost, to the City all of the Records in possession of the Foundation upon termination of the contract and destroy any duplicate Records that are exempt or confidential and exempt from public records disclosure requirements. All of the Records stored 2 electronically must be provided to the City in a format that is compatible with the City's information technology systems. d. Create and/or retain records evidencing all expenditures of the Grant under this Agreement by the Foundation, including, but not limited to, e-mails, invoices, agreements with subcontractors, and any other record, in whatever medium that said records are kept, that evidences the use of the Grant under this Agreement, including records that substantiates the requirement under this Agreement that the Grant o7ily be expended within the City or as a pro -rated amount relative to the cost of design of the entirety of the Project pursuant to Section 3 of this Agreement. This section shall survive the term of this Agreement pending the transfer of the Records in accordance with subsection c. 7. AUDIT RIGHTS. The City shall have the right to conduct audits of all of the Foundation's records, including those Records as described in Section 6 of tlus Agreement, pertaining to the Grant and to visit the Project site in order to conduct monitoring and evaluation activities. 8. NOTICE. All notices or other communications that may be given pursuant to this Agreement shall be in writing and delivered by personal service or registered mail to the address indicated for the particular party below. Such notice shall be considered given on the day of personal service, or if by registered mail, five (5) days after posting or the date of actual receipt, whichever is earlier. To City of Miami To Parks Foundation of Miami - City: 444 SW 2nd Avenue, I Ot" Floor Foundation: Dade, Inc. Miami, FL 33130 275 NW 2nd Street, 5th Floor Attn: Daniel J. Alfonso, City Manager Miami, FL 33178 AND City of Miami 444 SW 2nd Avenue, Ste. 915 Miami, FL 33130 Attn: Victoria M6ndez, City Attorney 9. REMEDIES FOR NON-COMPLIANCE. If the Foundation fails to perform any of its obligations or covenants hereunder, or materially breaches any of the terms contained herein, then the City shall have the right to take one or more of the following actions: a. Recover payments made to the Foundation, including both spent and unspent payments; b. Take any and all other remedies as may be legally permitted. 10. LIABILITY OF CITY. In the event of breach of this Agreement by the City, the Foundation may only seek specific performance of this Agreement and any recovery shall be 3 limited to the funding from the Grant pursuant to this Agreement. In no event shall the City be liable to the Foundation for additional compensation, including consequential or incidental costs or damages. 11. MARKETING. Foundation shall prominently mention that it is supported and funded by the City of Miami, a Florida municipal corporation, on all approved signage promotional media and brochures, publication and similar documents, or data. The City shall be referenced in the same or like manner as Miami -Dade County, the State of Florida or other public agency providing finding for the Project. 12. INDEMNIFICATION. The Foundation shall indemnify, defend, save and hold harmless the City and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "liabilities") arising out of, resulting from or in connection with (i) the performance or non-performance of the services , supplies, materials and equipment contemplated by this Agreement which is directly or indirectly caused, in whole or in part, by any act, omission, default, professional errors or omissions, or negligence (whether active or passive) of the Foundation or its employees, agents or subcontractors (collectively referred to as the "Foundation"), 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, breach, or negligence (whether active or passive) of the City, unless such injuries or damages are ultimately proven to be the result of grossly negligent or willful acts or omissions on the part of the City; or (ii) the failures of the Foundation to comply with any of the paragraphs provisions herein; or (iii) the failure of the Foundation to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal, state, county, or city in connection with the granting or performance of this Agreement, or any Amendment to this Agreement, or any actions or challenges that may arise out of this Amendment of the Agreement by, as due to alleged failure to comply with any applicable procurement requirements or similar limitations imposed on such agreements by law, the Foundation expressly agrees to indemnify and hold harmless the City, from and against all liabilities which may be asserted by an employee or former employee of the Foundation, or any of its subcontractors, as provided above, for which the Foundation's liability to such employee or former employee would otherwise be limited to payments under state Worker's Compensation or similar laws. This section shall be interpreted in a manner to comply with any applicable Florida Statutes, including, without limitation, 725.06 and 725.08, Fla. Stat., if applicable. This Indemnification shall survive the cancellation or expiration of the Agreement. 13. NON-DELEGABILITY. The obligations of the Foundation under this Agreement shall not be delegated or assigned to any other party without the City's prior written consent which may be withheld by the City, in its sole discretion, for any or no reason whatsoever. However, it is understood that the Foundation will require the services of various subcontractors to facilitate the creation and completion of the Project. Nothing in this section shall be construed as prohibiting the Foundation contracting with others to facilitate the Project consistent with the restrictions of the use of the Grant. 14. AMENDMENTS. No amendment to this Agreement shall be binding on either party, unless in writing and signed by both parties ►,al 15. INTERPRETATION. This Agreement shall be interpreted in accordance with the laws of the State of Florida, Miami -Dade County and the City of Miami. a. CAPTIONS. The captions in this Agreement are for convenience only and are not a part of this Agreement and do not in any way define, limit, describe or amplify the terms and provisions of this Agreement or the scope or intent thereof. b. ENTIRE AGREEMENT. This instrument constitutes the sole and only agreement of the parties hereto relating to the Grant, and correctly set forth the rights, duties, and obligations of the parties. There are no collateral or oral agreements or understandings between the City and the Foundation relating to the Agreement. Any promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. This Agreement shall not be modified in any mariner except by an instrument in writing executed by the parties. The masculine (or neuter) pronoun and the singular number shall include the masculine, feminine and neuter genders and the singular and plural number. The word "including" followed by any specific item(s) is deemed to refer to examples rather than to be words of limitation. c. CONSTRUCTION. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. d. COVENANTS. Each covenant, agreement, obligation, term, condition or other provision herein contained shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making the same, not dependent on any other provision of this Agreement unless otherwise expressly provided. All of the terms and conditions set forth in this Agreement shall apply throughout the term of this Agreement unless otherwise expressly set forth herein. e. CONFLICTING TERMS. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall govern. f. WAIVER. 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. g. SEVERABILITY. Should any provision contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida, then such provision shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, that same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain uninodified and in full force and effect. h. THIRD -PARTY BENEFICIARIES. No provision of this Agreement shall, in any way, inure to the benefit of any third party so as to make such third party a beneficiary of this Agreement, or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any party not a party hereto, 16. MISCELLANEOUS PROVISIONS a. INDEPENDENT CONTRACTOR. The Foundation, its contractors, subcontractors, employees and agents 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 programs of the City, or any rights generally afforded its employees; further, they shall not be deemed entitled to Florida Workers' Compensation benefits as employees of the City. b. TIME OF THE ESSENCE. Time shall be of the essence for each and every provision of this Agreement. c. ATTORNEY'S FEES AND COSTS. In the event of any litigation between the parties under this Agreement, the parties shall bear their own attorneys' fees and costs at trial and appellate levels. d. INCORPORATION BY REFERENCE. All exhibits attached to this Agreement are incorporated in, and made a part of this Agreement. e. NOT EFFECTIVE UNTIL APPROVED BY GOVERNING BODY. The Foundation acknowledges that, notwithstanding execution of the Agreement, this Agreement is not effective unless, and until, it is approved by the City Commission. [This space intentionally left blank] IN WITNESS WHEREOF, I have hereunto set my/our hand(s) and seal(s) this _ day of , 2015. PARKS FOUNDATION OF MIAMI-DADE, INC. Witness Signature Witness Name STATE OF FLORIDA COUNTY OF MIAMI-DADE By: On behalf of Parks Foundation of Miami - Dade, Inc. The foregoing instrument was acknowledged before me by is ❑ personally known to me or ❑ has Produced who did take an oath. Witness my signature and official seal this day of State aforesaid. Notary Public State of My Commission Expires: Print Naive [This space intentionally left blank] 7 . He as identification and 2015, in the County and ATTEST: Todd Hannon, City Clerk APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, City Attorney W CITY OF MIAMI, a municipal corporation Daniel J. Alfonso, City Manager APPROVED AS TO RISK MANAGEMENT REQUIREMENTS: Ann -Marie Sharpe, City Manager Department of Risk Management