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HomeMy WebLinkAboutExhibitCITY OF MIAMI / UNDERLINE MEMORANDUM OF UNDERSTANDING This CITY OF MIAMI / UNDERLINE MEMORANDUM OF UNDERSTANDING (the "MOU"), made and entered into this day of , 2016 (the "Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida whose principal address is 444 SW 2 Avenue, 10th Floor, Miami, Florida 33130 (the "City"), and Miami -Dade County, a political subdivision of the State of Florida, whose principal address is 111 NW 1st Street, Miami, Florida 33178 (the "County"), is entered into as follows: RECITALS A. The County, in conjunction with Friends of the Underline, a Florida not-for-profit corporation, is enhancing an approximately ten (10) mile long portion of the land consisting of the Miami -Dade County Metrorail right of way from the Miami River to the Dadeland South Metrorail Station (9150 Dadeland Boulevard, Miami, Florida 33156) to create an iconic recreational space known as The Underline (the "Project"), B. The City wishes to facilitate the enhancement of the portion of the Project within the City's territorial limits depicted in that presentation made to the City of Miami City Commission on September 10th, 2015 in connection with items RE. 11 and DI. 6 and submitted into the public record thereof, as a parks and recreation system improvement as defined in Ch. 13 of the City Code that draws patrons from the entire geographic area of the City by providing partial funding to the County from impact fees. C. The County 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-, a copy of which is attached as Exhibit "A hereto and made a part hereof, passed and adopted on , authorized the City Manager to enter into a memorandum of understanding with the County for funding of the Project from park impact fees attributable to construction of buildings within one thousand (1,000) feet of the Project in an amount not to exceed fifty million dollars ($50,000,000.00) provided that said funds shall be expended on within six (6) years (the "Grant"). E. The City and the County wish to enter into this MOU 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 County agree as follows: 1. RECITALS. The Recitals of this MOU are true and correct, and are incorporated herein by reference and made a part thereof. 1 2. GRANT. Subject to the terms and conditions set forth herein and the County's compliance with all of its obligations hereunder, the City hereby agrees to make available to the County the Grant, on a reimbursement basis, and as availability permits, in an amount not to exceed Fifty Million Dollars ($50,000,000.00) from the City's impact fees that are derived from developments that have paid or will pay impact fees within one thousand (1,000) feet of the Project, to be used solely for the purpose and disbursed in the mauler hereinafter provided, subject to availability of those impact fees from that delineated area from where impact fees for this Grant shall be derived. 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, refurbislunent, or replacement of existing capital improvements, capital facilities, or capital equipment. At the City's sole discretion, payment of the Grant or portions thereof may be withheld for non-compliance with the terms of this MOU. The City shall give Grant payments to the County under this MOU upon receipt of documentation satisfactory to the City that the County's expenditures are compliant with the restrictions of the Grant in this MOU. 4. TERM. The term of this MOU shall commence on the Effective Date and shall terminate upon the earlier of: a. Completion of the Project; or b. Six (6) years from the date of execution, whichever occurs last; or c. The expenditure of Fifty Million Dollars ($50,000,000.00) from the City's impact fees that are derived from developments that have paid or will pay impact fees within one thousand (1,000) feet of the Project to the County; or d. Termination for any or no reason whatsoever by the City upon giving five (5) days written notice to the County at which time the City shall be relieved of all obligations under this MOU; or e. Earlier termination as provided in this MOU. 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 MOU. 5. COMPLIANCE WITH APPLICABLE LAW. The County 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 County agrees to comply with all applicable federal, state, and local laws, codes, rules, and regulations in connection with this MOU. 6. AUDIT RIGHTS. The City shall have the right to conduct audits of all of the County's records pertaining to the Grant and to visit the Project site in order to conduct monitoring and evaluation activities. 7. NOTICE. All notices or other communications that may be given pursuant to this MOU shall be in writing and delivered by personal service or registered email to the address 2 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 County: Miami -Dade County City: 444 SW 2"d Avenue, 10t" Floor 111 NW 1St Street, Miami, FL Miami, FL 33130 33128, 29t" Floor Attn: Daniel J. Alfonso, City Manager Attn: Mayor Carlos Gimenez AND City of Miami 444 SW 2"d Avenue, Ste. 915 Miami, FL 33130 Attn: Victoria Mendez, City Attorney 8. REMEDIES FOR NON-COMPLIANCE. If the County 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 County, including both spent and unspent payments; b. Take any and all other remedies as may be legally permitted. c. Terminate this MOU pursuant to Section 4(d). 9. LIABILITY OF CITY. In the event of breach of this MOU by the City, the County may only seek specific performance of this MOU and any recovery shall be limited to the funding from the Grant pursuant to this MOU. In no event shall the City be liable to the County for additional compensation, including consequential or incidental costs or damages. 10. MARIC-ETING. County shall prominently mention that the Project is supported and funded by the City on all approved signage promotional media and brochures, publication and similar documents, or data. The City shall be referenced in the same or like maiuler as Miami -Dade County, the State of Florida or other public agency providing funding for the Project. 11. INDEMNIFICATION. The County 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 MOU 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 County or its employees, agents or subcontractors (collectively referred to as the "County"), 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 County to comply with any of the paragraphs 3 provisions herein; or (iii) the failure of the County to conform to statutes, ordinances, or other regulations or requireinents of any governmental authority, federal, state, county, or city in connection with the granting or performance of this MOU, or any amendment to this MOU, or any actions or challenges that may arise out of an amendment of the MOU by, as due to alleged failure to comply with any applicable procurement requirements or similar limitations imposed on such agreements by law, the County 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 County, or any of its subcontractors, as provided above, for which the County'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 MOU. 12. NON-DELEGABILITY. The obligations of the County under this MOU 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 County will require the services of various contractors and subcontractors to facilitate the creation and completion of the Project. Nothing in this section shall be construed as prohibiting the County from contracting with others to facilitate Phase One of the Project consistent with the restrictions of the use of the Grant. 13. AMENDMENTS. No amendment to this MOU shall be binding on either party, unless in writing and signed by both parties 14. INTERPRETATION. This MOU 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 MOU are for convenience only and are not a part of this MOU and do not in any way define, limit, describe or amplify the terms and provisions of this MOU 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 County relating to the MOU. Any promises, negotiations, or representations not expressly set forth in this MOU are of no force or effect. This MOU shall not be modified in any manner 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 MOU 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 teens 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 4 prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this MOU. 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 MOLT unless otherwise expressly provided. All of the terms and conditions set forth in this MOU shall apply throughout the term of this MOU unless otherwise expressly set forth herein. e. CONFLICTING TERMS. In the event of conflict between the terms of this MOU and any terms or conditions contained in any attached documents, the terms of this MOU shall govern. f. WAIVER. No waiver or breach of any provision of this MOU 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 MOU 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 MOU shall remain uiunodified and in full force and effect. h. THIRD -PARTY BENEFICIARIES. No provision of this MOU shall, in any way, inure to the benefit of any third party so as to make such third party a beneficiary of this MOU, 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. 15. MISCELLANEOUS PROVISIONS a. TIME OF THE ESSENCE. Time shall be of the essence for each and every provision of this MOU. b. ATTORNEY'S FEES AND COSTS. In the event of any litigation between the parties under this MOU, the parties shall bear their own attorneys' fees and costs at trial and appellate levels. c. INCORPORATION BY REFERENCE. All exhibits attached to this MOU are incorporated in, and made a part of this MOU. [This space intentionally left blank] 5 IN WITNESS WHEREOF, I have hereunto set my/our hand(s) and seal(s) this , 2016. Miami -Dade County, Florida ATTEST: Harvey Ruvin, Clerk day of Miami -Dade County, Florida By its Board of County Commissioners Deputy Clerk Carlos A. Gim6nez, Mayor [This space intentionally left blank] C. ATTEST: Todd Haiulon, City Clerk APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria M6ndez, City Attorney 7 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