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HomeMy WebLinkAboutExhibitGIFT AGREEMENT This Gift Agreement ("Agreement"), made and entered into the day of , 2017 ("Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida whose principal address is 3500 Pan American Drive, Miami, Florida 33133 ("City"), and the Miami Marlins, L.P., a Foreign Limited Partnership, whose principal address is, 501 Marlins Way, Miami, FL 33125, and Major League Baseball, a Foreign not for Profit Corporation, whose principal address is, 245 Park Avenue, New York, NY 10167 ("MLB")(collectively referred to as "Donors"), is entered into as follows: WITNESSETH: NOW THEREFOR AND IN CONSIDERATION of the premises and the mutual covenants and conditions contained herein, the parties hereto agree as follows: L DESCRIPTION OF GIFT; GIFT PROPERTY OF THE CITY; TERM; TERMINATION. Miami Marlins, L.P. and MLB grant, donate, and give to the City, absolutely and without reservation or restriction, (except that the Gift be used for public recreational and municipal purposes), the approximate amount of one million (1,000,000) dollars in the form of permitted improvements ("Gift") at Hadley Park and Jose Marti Park, City -owned properties which are active City Parks. The Gift is generously donated to the City by Miami Marlins, L.P. and MLB and will consist of field renovation improvements in the City Parks inclusive of but not limited to, grading, site work, fencing, lighting, dugouts, and painting without any compensation, payments or other fees or costs to Miami Marlins, L.P. or to MLB. The term of this Agreement shall be for one (1) year from execution or until the work is fully completed and accepted as provided herein, whichever occurs first. The City Manager may extend this Agreement for one(l) further year for good cause shown by the Donors . The total term may not exceed two(2) years. In no event shall the City be liable to Donors or their contractors for any compensation and expenses incurred, and in no event shall the City be liable for any direct, consequential or incidental damages, costs, debts, fees or liabilities of the Donors. In the event of such cancellation the City shall be conveyed title by bill of sale absolute for the improvements made to date of cancellation. In no event, shall the City be liable to Donors or their contractors, representatives, heirs or assigns for any direct, consequential, general, incidental or special damages, or costs, debts, or liabilities of the Donors related to this Agreement. The City shall be conveyed the permitted improvements constituting the Gift by title by bill of sale absolute free of liens and encumbrances for the improvements on or before August 30, 2017. II. NO PARTNERSHIP. Nothing in this Agreement shall be construed to make the parties hereto partners or joint ventures or render either of said parties liable for the debts or obligations of the other. Miami Marlins, L.P. and/or MLB are not agents, representatives or affiliates of the City. Miami Marlins, L.P. has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. Accordingly, neither Donors, nor their employees, nor any subcontractor hired by Donors to provide any services under this Agreement shall attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Donors further understand that Florida Workers' Compensation benefits available to employees of the City are not available to Donors, their employees, or any subcontractor hired by Donors to provide any services hereunder, and Donors agree to provide or to require subcontractor(s) to provide, as applicable, workers' compensation insurance for any employee or agent of Donors rendering services to the City under this Agreement. Donors further understand and agree that Donors' or subcontractors' use or entry upon City properties shall not in any way change its or their status as an independent contractor. III. NOTICES. All notices pursuant to this Agreement shall be in writing and sent by certified mail or delivered by personal service to the addresses for each party appearing on page one (1) of this Agreement and as indicated below, or as the same may be changed in writing from time to time. For Miami Marlins L.P. to: Miami Marlins, L.P. 501 Marlins Way Miami, FL 33125 Attention: Claude Delorme, Executive Vice President For MLB to - Major League Baseball 245 Park Avenue New York, NY 10167 Attention: Tom Brasuell, Vice President for Community Affairs For the City to: City Manager, City of Miami Miami Riverside Center 444 S.W. 2nd Avenue, 10th Floor Miami, Florida 33130 Director, Parks Department City of Miami, Miami Riverside Center 444 S.W. 2nd Avenue, 8th Floor Miami, Florida 33130 City Attorney City of Miami, Miami Riverside Center 444 S.W. 2nd Avenue, 9th Floor, Suite 945 Miami, Florida 33130 It is Miami Marlins, L.P. and MLB's responsibility to advise the City in writing of any changes in their contact names, addresses and/or telephone numbers. Such notice shall be deemed given on the day on which personally served, or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. IV. GOVERNING LAW; GENERAL PROVISIONS 1. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. The parties, in their performance of this Agreement will comply with applicable federal, state, county and city laws, codes. 2. This Agreement shall be construed and enforced according to the laws of the State of Florida_ Venue in any proceedings between the parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a jury trial. 3. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 4. 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. 5. Should any provision, paragraph, sentence, word or phrase 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 or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then the same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. 6. Donors shall comply with all applicable laws, rules and regulations in the performance of this Agreement, including but not limited to licensure, and certifications required by law for professional service providers. 7. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. The City Manager shall have the sole authority to extend, to amend or to modify this Agreement on behalf of the City providing that any change in the amount of the funding or any extension of the term beyond thirty (30) days shall require City Commission approval. 8. CITY NOT LIABLE FOR DELAYS: Donors hereby understand and agree that in no event shall the City be liable for, or responsible to Donors or any subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no control. 9. USE OF NAME: Donors understand and agree that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. Donors are allowed, within the limited scope of normal and customary marketing and promotion of their work, to use the general results of this project and the name of the City. The Donors agrees to protect any confidential information provided by the City and will not release information of a specific nature without prior written consent of the City Manager or the City Commission. 10. NO CONFLICT OF INTEREST: Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Donors hereby certify to City that no individual member of Donors, no employee, and no subcontractor under this Agreement or any immediate family member of any of the same is also a member of any board, commission, or agency of the City. Donors hereby represent and warrant to the City that throughout the term of this Agreement, Donors, their employees and their subcontractors will abide by this prohibition of the City Code. 11. NO THIRD -PARTY BENEFICIARY: No persons other than the Donors and the City (and their successors and assigns) shall have any rights whatsoever under this Agreement. 12. SURVIVAL: All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination. 13. NON-DISCRIMINATION: Donors represent to the City that Donors do not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Donors' performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Donors further covenant that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 14. ASSIGNMENT: This Agreement shall not be assigned by Donors, in whole or in part, and Donors shall not assign any part of its operations, without the prior written consent of the City, which may be withheld or conditioned, in the City's sole discretion through the City Manager. Donors may not change or replace sub -contractors performing work under the Scope of Services identified in Exhibit "B" without the prior written consent from the City Manager. 16. Donors understand 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, including without limitation Florida Statute 119.070 1, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable laws. Donors' failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. Should Donors determine to dispute any public access provision required by Florida Statutes, then Donors shall do so at its own expense and at no cost to the City. 17. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Donors understand 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 Donors 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. Donors further agree to include in all of Donors' agreements with subcontractors 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. V. INSURANCE; HOLD HARMLESS; BONDING. INSURANCE: A. Donors shall, always 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 "D" and incorporated herein by this reference. The Donors shall add the City of Miami as an additional named insured to its commercial general liability and auto policies and as a named certificate holder on all policies. Donors shall correct any insurance certificates as requested by the City's Risk Management Administrator. 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 Administrator on Certificates of Insurance indicating such insurance to be in force and effect and providing that the City is provided with written notice of cancellation or material change from the insurer in accordance with policy provisions. Completed Certificates of Insurance shall be filed with the City prior to the performance of services hereunder, provided, however, that Donors shall at any time upon request file duplicate copies of the policies of such insurance with the City. B. Donors understand and agree that all liabilities regarding the use of any of Donors' employees or any of Donors' subcontractors for services related to this Agreement shall be borne solely by Donors throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. Donors further understands and agrees that insurance for each employee of Donors and each subcontractor providing services related to this Agreement shall be maintained in good standing and approved by the City Risk Management Administrator throughout the duration of this Agreement. C. Donors 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, Donors shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Administrator at a minimum of ten (10) calendar days in advance of such expiration. 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 the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Administrator; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek damages from Donors in conjunction with the violation of the terms and conditions of this Agreement. D. Compliance with the foregoing requirements shall not relieve Donors of their liabilities and obligations under this Agreement. E. Donors shall indemnify, defend and hold harmless the City and its officials, employees, and its designated third -party administrator for claims (collectively referred to as "Indemnitees") 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") 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 negligent performance or non-performance of the services contemplated by this Agreement (whether active or passive) of Donors or their employees or subcontractors (collectively referred to as "Provider") which is directly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive or in strict liability) of the Provider, or any of them, or (ii) the failure of the Donors to comply materially with any of the requirements herein, or the failure of the Donors to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, local, federal or state, in connection with the performance of this Agreement. Donors expressly agree to indemnify, defend and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Provider, or any of its subcontractors, as provided above, for which the Donors' liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. Donors further agree to indemnify, defend and hold harmless the Indemnitees from and against (i) any and all liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, related directly to Provider's negligent performance under this Agreement, and (ii) any and all claims, and/or suits for labor and materials furnished by Donors or utilized in the performance of this Agreement or otherwise. This section shall be interpreted to comply with Sections 725.06 and/or 725.08, Florida Statutes. Donors' obligations to indemnify, defend and hold harmless the Indemnitees shall survive the termination of this Agreement. Donors understand and agree that all liabilities regarding the use of any subcontractor for services related to this Agreement shall be borne solely by Donors throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement. Donors shall cause their contractors to post a payment and performance bond in substantially the form prescribed by Section 255.05, Fla. Stat., subject to the approval of the City Risk Management Director, prior to commencement of any work. The payment and performance bond shall be in the sum of 100% of the amount of the construction cost and name the City as an oblige or co -obligee. The payment and performance bond shall be in place until the work is fully completed and accepted and all warranties and similar documents and releases have bene submitted. VI. ENTIRE AGREEMENT. This Agreement with any attachments referenced below embodies and constitutes the entire understanding between the City of Miami, Miami Marlins, L.P. and MLB concerning the Gift, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written with respect thereto, are merged therein. The parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this Agreement, and that this Agreement contains the entire agreement between the parties as to all matters contained herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that any oral representations or modifications concerning this Agreement shall be of no force or effect. This Agreement may be modified, altered or amended only by a written amendment duly executed by all parties hereto or their authorized representatives. The City Manager is authorized to amend or modify this Agreement as needed on behalf of the City and in accordance with the aforementioned terms provided any amendment involving an expenditure of City funds or resources may require City Commission approval. WITNESSES: MIAMI MARLINS, L.P. By: By: Print: Print Title: Title Date: Date MAJOR LEAGUE BASEBALL By: By: Print: Print: Title: Title: Date: Date: ATTEST: Todd B. Hannon, City Clerk Date: CITY OF MIAMI, a municipal corporation of the State of Florida Un Daniel J. Alfonso, City Manager Date: APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, City Attorney Approved as to Insurance: Anne Marie Sharpe, Director of Risk Management