Loading...
HomeMy WebLinkAboutExhibit DCOMPOSITE EXHIBIT "D" MEMORANDUM OF INTENT TO ENTER INTO A MAINTENANCE AGREEMENT BETWEEN THE CITY OF .MIAMI AND THE DOWNTOWN MIAMI PARTNERSHIP d/b/a FLAGLER DISTRICT DID. This Memorandum of Intent To Enter Into A Maintenance Agreement ("MOI") is hereby entered into as of the 251 of July, 2019, by and between the City of Miami, a municipal corporation organized and existing under Florida law, with principal offices at 444 Southwest 2od Avenue, Miami, Florida 33130 (the "City"), and Downtown Miami Partnership Inc., a Florida not for profit corporation, d/b/a Flagler District BID, with primary offices at 25 SE 211 Avenue, #240 (the "FDBID") (collectively, the City and the FDBID may hereinafter be referred to as the "Parties"). 1 19 go] 0 1I:1R WHEREAS, the City began a project to improve the urban landscape of Flagler Street, in or about 2016, which included without limitation a new street hardscape, sidewalks, benches, and landscaping, which was to be performed by a designated city contractor (the "Original Project"), pursuant to Resolution 4 : and, WHEREAS, the Miami Downtown Development Authority ("Miami DDA") passed and adopted Resolution 006/2018, Resolution 018/2018, and Resolution 022/2018 to study whether the City should increase the budget and incorporate pavers and other modifications to the scope of the Original Project, as well as allocate $ 1,000,000 per year, over four years, beginning in Fiscal Year 2018-2019, as set forth in Composite Exhibit "A;" and, WHEREAS, the City has agreed to allocate taxpayer funds to upgrade the Original Project with Non -Standard Improvements; and, WHEREAS, on May 14, 2019, pursuant to Resolution 42019-003, the FDBID, by a majority vote, supported the inclusion of estimated budgets for maintenance cost of the Non - Standard Improvements within the process for creating the special assessment district pursuant to Chapter 170.0 1, Florida Statutes for the Flagler District of Downtown Miami; and WHEREAS, the FDBID, as a tax exempt entity under Section 501(c)(6) of the Internal Revenue Code, agrees to organize and file, with the City of Miami, to create, by a majority of those affected property owners, the City's levy and collection of special assessments, pursuant to Chapter 170.0 1, Florida Statutes, by December 2020, including estimated budgets and proposed agreements to pay for all maintenance, replacement, restoration, improvement, modification, and ("Maintenance" or "Maintain") of those certain Non -Standard Improvements: and WHEREAS, the City of Miami hereby agrees to consider a special assessment district pursuant to Chapter 170.0 1, Florida Statutes, for services including the Maintenance of the Non - Standard Improvements; and WHEREAS, the Non -Standard Improvements will be constructed and located along Flagler Street from West 1st Avenue to Biscayne Boulevard, Miami, Florida; and Page I of 4 4-A WHEREAS, the City and the FDBID desire to enter into this M01 to act in good faith and negotiate a Memorandum of Understanding setting forth the obligations of the Parties with respect to the construction and Maintenance of the Nonstandard Improvements. NOW, THEREFORE, in consideration of the foregoing, the Parties agree as follows: 1. Recitals. The Recitals are true and correct and are hereby incorporated into and made a part of this MOL 2. Proposed Terms of the NIOU. 2.1 Construction - The City shall be responsible to construct, in sections, the Non - Standard Improvements in a manner generally consistent with scope and timeline attached hereto and hereinafter referred to as Exhibit "B." The construction of the Non -Standard Improvements shall include a warranty. 2.2 Maintenance — FDBID shall organize and file with the City of Miami, to create a special assessments district pursuant to Chapter 170.01, Florida Statutes, by December 2020, including estimated budgets and the proposed MOU to pay for Maintenance of the Nonstandard Improvements. 23 Creation of Special Assessment District - the City of Miami shall use good faith effort to timely consider a special assessment district pursuant to Chapter 170.0 1, Florida Statutes, for the Maintenance of the Non -Standard Improvements, upon filing for the creation of the special assessment district by FDBID. 2.4 Choice of Law. Venue, and Waiver of Jury Trial. The proposed MOU shall be construed in accordance with the laws of the State of Florida. The proposed MOU shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of the proposed MOU shall lie in Miami -Dade County, Florida. The FDBID and the City in the proposed MOU shall expressly waive any rights either party may have to a trial by jury of any litigation related to or arising out of the proposed MOU. 2.5 Point of Contact. In connection with the matters addressed in the proposed MOU, the President of the FDBID, or is his designee will serve as designated representative and "point person" for the FDBID. The City Manager or his designee, will serve as the designated representative and "point person" for the City. All official communication about material issues related to the District and the construction of the "Non -Standard Improvements" must flow through and the City Manager or his designee, with each of these designated representatives responsible for the further dissemination of information to other members of their respective teams as they deem appropriate. Page 2 of 4 3. Notices. All notices and communications in writing required or permitted under this MOI shall be delivered personally to the representatives of the FDBID and the City listed below, or may be mailed by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized overnight delivery service. Unless changed by notice in writing, all such notices and communications shall be addressed as follows: To Flagler BID: Gary Ressler President Flagler District BID 25 Southeast 211d Avenue, #2140 Miami, Florida 33131 With a copy to: Maria A. Gralia, Esq. Steams Weaver Miller Weissler Alhadeff and Sitterson, P.A. IS 0 West Flagler Street Suite 2200 Miami, Florida 33130 To the City: City Manager City of Miami 444 Southwest 2' Avenue I 01h Floor Miami, Florida 33130 With a copy to: Department of Resilience & Public Works City of Miami 444 Southwest 2"d Avenue 811 Floor Miami, Florida 33130 Notice may also be provided to any other address designated by the party to receive notice if such alternate address is provided via U. S. certified mail, return receipt requested, hand delivered, or by overnight delivery. In the event an alternate notice address is properly provided, notice shall be sent to such alternate address in addition to any other address which notice would otherwise be sent, unless other delivery instruction is specifically provided for by the party entitled to notice. Notice shall be deemed given on the day on which personally served, or the day of receipt by either U.S. certified mail or overnight delivery. SIGNATURES ON THE FOLLO)VWG PAGE Page 3 of 4 IN WITNESS WHEREOF, the Parties hereto have affixed their signatures, effective on the day first above written, CITY OF MLAA41 ATTEST: By: Todd B. Hannon, City Clerk DOWNTOWN MIAMI PARTNERSHIP, INCA'b/a FLA LER DISTRICT BID By: Its: CITY OF MIAMI, a municipal corporation of the State of Florida By: Emilio T. Gonzalez, Ph.D., City Manager MEMORANDUM OF UNDERSTANDING AND ROADWAY MAINTENANCE AGREEMENT BETWEEN THE CITY OF MIAMI AND THE DOWNTOWN MIAMI PARTNERSHIP, INC. D/B/A FLAGLER DISTRICT BID, A FLORIDA NOT FOR PROFIT CORPORATION ("FDBID") This Memorandum of Understanding and Roadway Maintenance Agreement ("MOU") is hereby entered into as of the day of , 2019, by and between the City of Miami, a municipal corporation organized and existing under Florida law, with principal offices at 444 Southwest 2nd Avenue, Miami, Florida 33130 (the "City"), and the Downtown Miami Partnerships, Inc. d/b/a Flagler District BID, a Florida not-for-profit corporation with principal offices at 25 Southeast 2"d Avenue, #240, Miami, Florida 33131 (the "FDBID") (collectively, the City and the FDBID may hereinafter be referred to as the "Parties"). RECITALS WHEREAS, the City began a project to improve the urban landscape of Flagler Street, in 2017, which included without limitation a new street hardscape, sidewalks, benches, and landscaping, which was to be performed by a designated city contractor (the "Original Project'), pursuant to Resolution 14-0372; and, WHEREAS, the Miami Downtown Development Authority ("Miami DDA") passed and adopted Resolution 006/2018, Resolution 018/2018, and Resolution 022/2018 to study whether the City should increase the project budget and incorporate pavers and other modifications to the scope of the Original Project, as well as allowing the Miami DDA to allocate up to $1,000,000 over four (4) years, beginning in Fiscal Year 2018-2019, as set forth in Composite Exhibit "A" to the project; and, WHEREAS, the FDBID is comprised of the property owners located on and around Flagler Street, and with the Miami DDA, petitioned the City to upgrade the Original Project to include, without limitation, the installation of pavers and similar non-standard streetscape ("Non -Standard Improvements"), as defined, without limitation, in Exhibit "B," attached hereto; and, WHEREAS, the FDBID requested and the City consented to amend the Original Project's scope and timeline to instead construct Non -Standard Improvements, pursuant to the new scope and timeline, as described in Exhibit "C," attached hereto, within the area described below; and, WHEREAS, the City has agreed to spend significant taxpayer funds to upgrade Original Project with Non -Standard Improvements; and, WHEREAS, as a material condition to spend those certain taxpayer funds, the current iteration of the FDBID, as a tax exempt entity under Section 501(c)(6) of the Internal Revenue Code, has represented to the City its intention to form a Special Assessment District, pursuant to Florida Statutes, in order to pay for all, replacement, restoration, improvement, modification, and/or removal ("Repair and Restoration") of those certain Non -Standard Improvements; and, WHEREAS, in the event that a Special Assessment District is not formed under Florida Statutes, FDBID hereby agrees to be responsible for the Repair and Restoration of the non-standard improvements, inclusive of all funding thereof; and WHEREAS, the Non -Standard Improvements will be constructed within the Flagler Street corridor from West l" Street to Biscayne Blvd; and, WHEREAS, the City and the FDBID desire to enter into this MOU to set forth the obligations of the Parties with respect to the construction and Maintenance of the Non - Standard Improvements. NOW, THEREFORE, in consideration of the foregoing, the Parties agree as follows: 1. Recitals. The Recitals are true and correct and are hereby incorporated into and made a part of this MOU. 2. Scope of Services. 2.1 Construction — The City shall make good faith efforts to construct, in sections, the Non -Standard Improvements in a manner generally consistent with scope and timeline attached hereto and hereinafter referred to as Exhibit "C." The construction of the Non -Standard Improvements shall include a warranty. Upon substantial completion of each section, the City shall transfer the Repair and Restoration responsibilities and obligations of said section to the FDBID, as further described in Section 2.2 below. 2.2 Repair and Restoration— FDBID shall Repair and Restore all Non -Standard Improvements included in each section once the construction in said section is completed, until the future Special Assessment District is formed. If the Special Assessment District is not formed, FDBID shall continue to be responsible for the Repair and Restoration. The City shall notify FDBID of the Non -Standard Improvements warranty provisions as part of the FDBID's obligations described herein. As a material condition to spending taxpayer funds to construct the Non - Standard Improvements, FDBID agrees to perforin any and all repair and Restoration of the non-standard improvements, and make best efforts to form a future Special Assessment District, pursuant to Florida Statutes, in order to fund all Repair and Restoration of those certain Non -Standard Improvements. The City agrees to cooperate and use best efforts to assist FDBID in forming such Business Improvements District, subject to all applicable laws, rules, and regulations. Notwithstanding the foregoing, FDBID, at its sole cost and expense, shall Repair and Restore any and all Non -Standard Improvements until such time as the future Special Assessment District is formed. If the Special Assessment District is not formed, FDBID shall continue to be responsible for the Repair and Restoration. FDBID's Repair and Restoration thereto shall include but not be limited to those items delineated on Exhibit "B," making such repairs, ordinary as well as extraordinary and structural as well as nonstructural, as and when needed. Need of such repair and restoration shall be determined by the City. The City shall not be required to furnish any services or facilities or to make any repairs or alterations in or to any improvement — ordinary or Non -Standard - associated with those improvements installed or constructed on Flagler Street, pursuant to this MOU. FDBID hereby assumes the full and sole responsibility for the condition, operation, repair, and restoration of said improvements. If FDBID defaults in keeping or performing its obligations hereunder, the City shall execute its remedies as set forth in Section 5 below, and all those that may be available under the law. 3. Funding. The construction of the Non -Standard Improvements will be funded by those sources identified on Exhibit "D." Additionally, FDBID agrees that it is contemplated that the Special Assessment District, if formed, shall be initially assessed $1,000,000.00.onnation of the future Special Assessment District, pursuant to Florida Statutes. In the event the Special Assessment District is not formed, FDBID agrees to pay the $1,000,000.00 to the City within INSERT TIMEFRAME. 4. Term and Expiration Date. This MOU and the Parties' obligations hereunder shall commence upon the full execution of this MOU and shall terminate on the earlier of the expiration of the Special Assessment District, the dissolution of the Special Assessment District, the exercise of any of the provisions in Section 5 of this MOU, or upon mutual written agreement of the Parties. Notwithstanding the foregoing, the milestones included in FDBID Resolution #2019-003, see Exhibit "E," attached hereto, shall be completed and the future Special Assessment District shall be incorporated no later than January 2021, in conformance with Florida Statutes: 5. Failure to Perform. In the event FDBID, its agents, representatives, designees, heirs, successors, or assigns fails in the reasonable discretion of the City to properly Repair and Restore the Non -Standard Improvements, as set forth in Section 2, or any part thereof, so that said improvements become a hazard to the health, welfare, or safety of the general public, the City shall give FDBID written notice of such failure via certified mail, return receipt requested, and FDBID shall within thirty (30) days from receipt of such notice either (i) restore the Non - Standard Improvements, or any part thereof, to a safe condition reasonably satisfactory to City, or (ii) remove the Non -Standard Improvements, or any part thereof, and restore Flagler Street, and the surrounding area affected by the Non - Standard Improvements, to current City standards at no cost or expense to City, subject to all applicable laws, rules and permitting regulations In the event FDBID, its heirs, successors, or assigns fails to either restore the Non - Standard Improvements, or any part thereof, to a safe condition reasonably satisfactory to the City, or remove the Non -Standard Improvements, or any part thereof, and restore Flagler Street or any other improved area associated therewith within the specified time as set forth in this Section, the City may remove the offending Non -Standard and seek reimbursement from FDBID.. 6. Indemnification. The FDBID agrees to indemnify and hold harmless the City of Miami and its officers, employees, agents, and contractors, from and against any and all actions (whether at law or in equity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees and costs, for personal, economic, or bodily injury, wrongful death, or loss of or damage to property, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the FDBID, its officers, employees, agents, contractors, or any other person or entity acting under the FDBID's control or supervision, in connection with, related to, or as a result of the FDBID's performance of the services pursuant to this MOU. To that extent, the FDBID shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. The FDBID shall maintain indemnification insurance in the amount of greater than or equal to $1,000,000. The provisions of this Section and of this indernnification shall survive termination or expiration of this MOU. Nothing contained in this section or elsewhere in this MOU is in any way intended to be a waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida Statutes. 7. Choice of Law, Venue, and Waiver of Jury Trial. This MOU shall be construed in accordance with the laws of the State of Florida. This MOU shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of this MOU shall lie in Miami -Dade County, Florida. By entering into this MOU, the FDBID and the City expressly waive any rights either party may have to a trial by jury of any civil litigation related to or arising out of this MOU. In the event that any legal action or litigation arises from the terms contained herein, each party shall be responsible for its own attorney's fees and costs. 8. Independent Contractor/No Joint Venture. This MOU shall not constitute or make the Parties a partnership or joint venture. For the purposes of this MOU, the FDBID shall be deemed to be an independent contractor, and not a partner, agent, agency, department, or ad hoc committee of the City. No agent or employee of FDBID shall attain any rights or benefits under the Civil Service or Pension Ordinance of the City, or any right generally afforded classified or unclassified employees, including annual leave and sick day accrual. Further, no agent or employee of FDBID shall be deemed entitled to Florida Worker's Compensation Benefits as an employee of the City or accumulation of sick or annual leave. 9. Point of Contact. In connection with the matters addressed in this MOU, , will serve as designated representative and "point person" for the FDBID. The City Manager or his designee, will serve as the designated representative and "point person" for the City. All official communication about material issues related to the District and the construction of the 'Non -Standard Improvements" must flow through and the City Manager or his designee, with each of these designated representatives responsible for the further dissemination of information to other members of their respective teams as they deem appropriate. 10. Notices. All notices and communications in writing required or permitted hereunder, shall be delivered personally to the representatives of the FDBID and the City listed below, or may be mailed by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized overnight delivery service. Unless changed by notice in writing, all such notices and communications shall be addressed as follows: To FDBID: Gary Ressler President Downtown Miami Partnerships, Inc. d/b/a Flagler District BID, a Florida not-for-profit corporation 25 Southeast 2"d Avenue, #240 Miami, Florida 33131 To the City: City Manager City of Miami 444 Southwest 2nd Avenue 10"' Floor Miami, Florida 33130 With a copy to: Department of Resilience & Public Works City of Miami 444 Southwest 2nd Avenue 81h Floor Miami, Florida 33130 Notice may also be provided to any other address designated by the party to receive notice if such alternate address is provided via U.S. certified mail, return receipt requested, hand delivered, or by overnight delivery. In the event an alternate notice address is properly provided, notice shall be sent to such alternate address in addition to any other address which notice would otherwise be sent, unless other delivery instruction is specifically provided for by the party entitled to notice. Notice shall be deemed given on the day on which personally served, or the day of receipt by either U.S. certified mail or overnight delivery. 11. Changes and Additions. This MOU cannot be modified or amended without the express written consent of the parties. No modification, amendment, or alteration of the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. 12. Severability. If any tern or provision of this MOU is held invalid or unenforceable, the remainder of this MOU shall not be affected, and every other term and provision of this MOU shall be valid and be enforced to the fullest extent permitted by law. 13. Entirety of Agreement. The City and FDBID agree that this MOU constitutes the entire agreement between the Parties. This MOU supersedes all prior negotiations, correspondence, conversations, agreements or understandings applicable to the matters contained herein, and there are no commitments, agreements or understandings concerning the subject matter of this MOU that are not contained in this document. Title and paragraph headings are for convenient reference and are not intended to confer any rights or obligations upon the parties to this MOU. IN WITNESS WHEREOF, the Parties hereto have affixed their signatures, effective on the day first above written. CITY OF MIAMI ATTEST: By: Todd B. Hannon, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: By: Ann -Marie Sharpe, Director CITY OF MIAMI, a municipal corporation of the State of Florida By: Emilio T. Gonzdlez, Ph.D., City Manager in APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez, City Attorney DOWNTOWN MIAMI PARTNERSHIP, INC. D/B/A FLAGLER DISTRICT BID, A FLORIDA NOT FOR PROFIT CORPORATION. By: Its: