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HomeMy WebLinkAboutAirspace Agmt+ sTATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 575.050.82 AIRSPACE AGREEMENT RIGHT OF WAY 05M3 Pape 1 of 7 ITEM/SEGMENT NO.; 2515611 MANAGING DISTRICT: Six F.A.P. NO.: 0951067 1 STATE ROAD NO.: 1-95 COUNTY.: Miami -Dade PARCEL NO.: THIS AGREEMENT, made this i dayof U,y 2pO„1:7 , between City of Miami at 444 SW 2nd Avenue, 3rd Floor, Miami, Florida 33130 (Lessee) and the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (Department), an agency of the State of Florida (State). WITNESSETH: WHEREAS, the Department may convey a leasehold in the name of the State, in any land, buildings, or other property, real or personal, acquired under Section 337.25, Florida Statutes; and WHEREAS, the United States Department of Transportation, Federal Highway Administration (FHWA), requires any use of airspace above, and/or below the highway's established gradeline, lying within the approved right of way limits on a Federal Aid System, to be accomplished pursuant to an airspace agreement In accordance with 23 CFR, Part 710, and WHEREAS, the Department has acquired sufficient legal right, title, and interest in the right of way of Interstate 95 which includes the property described in Exhibit 'A" attached hereto and made a part hereof, which right of way is part of a highway on a Federal Aid System; and WHEREAS, the Department desires to lease to Lessee the airspace above or below gradeline of the property described Exhibit 'A", attached and made a part hereof for the following purpose: Parking of police and impounded vehicles WHEREAS, the proposed use will not impair the full use and safety of the highway, require or permit vehicular access to such space directly from the established gradeline of said highway, or interfere with the free flow of traffic on said highway. NOW, THEREFORE, in consideration of the premises made a part hereof, and the covenants, promises, understandings, and agreements made by each party to the other as set forth herein, the Department and the Lessee do hereby mutually agree as follows: 1. Premises The premises hereto are true and correct and form an integral part of this Agreement. 2. Term The Department does hereby lease unto Lessee the airspace above or below gradeline of the property for a period of Five Years beginning with the date of this Agreement. One renewal of this Agreement may be made for Not applicable However, except for a public purpose conveyance, succi renewal may not exceed five years. Nothing herein shall be construed to in any way grant an interest in the property lying below said airspace. 575-080.32 RIGHT OF WAY 05/03 Page 2 of 7 3. B t a. Lessee shall pay to the Department as rent each O month O quarter @ year on or before the first day of each rent payment period, One dollar plus applicable sales tax. When this Agreement is terminated, any unearned rent and sales tax payment shall be refunded to Lessee. However, no such refund shag be made where termination is due to Lessee's violation of a term or condition of this Agreement. b. The Department reserves the right to review and adjust the rental fee biennualiy and at renewal to reflect market conditions. c. All rental payments are to be made by check or money order, payable to the State of Florida Department of Transportation and delivered on or before the due date to: Florida Department of Transportation, Right of Way Administration, 1000 NW 111 th Avenue, Room 6116, Miami, Florida 33172 d. Lessee shall be responsible for all state, county, city, and local taxes that may be assessed, including real property taxes and special assessments. In the event that no rent is specified herein, then it has been determined that either the use by Lessee is a nonproprietary use by a governmental agency or an exception from the current fair market rental value requirement (23 U.S.C. Section 156) has been obtained for social, environmental, or economic mitigation (SEE) purposes. In the event that it should be determined at any time that the use Is not a nonproprietary use by a governmental agency or that the SEE exception does not apply or has been revoked, Lessee agrees to pay, at that time, rent as determined to be the fair market rental value by an independent appraiser certified by the Department, and Lessee further agrees to pay such rent, under the remaining terms and conditions of this Paragraph 3, for the remaining term (including renewals) of this Agreement. e. Any installment of rent not received within ten (10) days after the due date shall bear interest at the highest rate allowed by law from the due date thereof. This provision shall not obligate the Department to accept late rent payments or provide Lessee a grace period. 4. Use. Occupancy, and Maintenance a. The Lessee shall be responsible for developing and operating the airspace as set forth herein. b. The Lessee's proposed use of the airspace is as follows: Parking of police and Impounded vehicles c. The general design for the use of the airspace, including any facilities to be constructed, and the maps, plans, and sketches setting out the pertinent features of the use of the airspace in relation to the highway facility are set forth in composite Exhibit V attached hereto and by this reference made a part hereof. In addition, said composite Exhibit 'B' also contains a three-dimensional description of the space to be used, unless the use Is of a surface area beneath an elevated highway structure or adjacent to a highway roadway for recreation, public park, beautification, parking of motor vehicles, public mass transit facilities, or other similar uses, In which case, a metes and bounds description of the surface area, together with appropriate plans or cross sections clearly defining the vertical use limits, may be substituted for said three-dimensional description in said composite Exhibit "B'. d. Any change in the authorized use of the airspace or revision in the design or construction of the facility described in Exhibit V shall require prior written approval from the appropriate District Secretary of the Department, subject to concurrence by the FHWA. e. The Department, through its duly authorized representatives, employees, and contractors, and any authorized FHWA representative, may enter the facility at any time for the purpose of Inspection, maintenance, or reconstruction of the highway and adjacent facilities, when necessary; or for the purpose of surveying, drilling, monitoring well installations, sampling, remediation, and any other action which is reasonable and necessary to conduct an environmental assessment or to abate an environmental hazard. 575-050-32 RIGHT OF WAY 05/03 Pepe 3 of 7 f. Lessee, at Lessee's sole cost and expense, shall maintain the facility to occupy the airspace so as to assure that the structures and the area within the highway right of way boundaries will be kept in good condition, both as to safety and appearance. Such maintenance will be accomplished in a manner so as to cause no unreasonable interference with the highway use. In the event that Lessee fails to so maintain the facility, the Department, through its duly authorized representatives, employees, and contractors, may enter the facility to perform such work, and the cost thereof shall be chargeable to the Lessee and shall be immediately due and payable to the Department upon the performance of such work. g. Portable or temporary advertising signs are prohibited. h. The design, occupancy, and use of the airspace shall not adversely affect the use, safety, appearance, or enjoyment of the highway by smoke, fumes, vapors, odors, droppings, or any other objectionable discharges or emissions, or nuisances of any kind therefrom. i. When, for the proposed use of the airspace, the highway requires additional highway facilities for the proper operation and maintenance of the highway, such facilities shall be provided by the Lessee without cost to either the Department or the FHWA and subject to both Department and FHWA approval. J. The proposed use shall not cause or allow any changes in the existing drainage on the property under the airspace. k. Lessee shall not occupy, use, permit, or suffer the airspace, the property, the facility, or any part thereof to be occupied or used for any illegal business use or purpose, for the manufacture or storage of flammable, explosive, or hazardous material, or any other hazardous activity, or in such manner as to constitute a nuisance of any kind, nor for any purpose or in any way in violation of any present or future federal, state, or local laws, orders, directions, ordinances, or regulations. I. Any activities in any way involving hazardous materials or substances of any kind whatsoever, either as those terms may be defined under any state or federal laws or regulations, or as those terms are understood in common usage, are specifically prohibited. The use of petroleum products, pollutants, and other hazardous materials affecting the property Is prohibited. Lessee shall be held responsible for the performance of and payment for any environmental remediation that may be necessary, as determined by the Department. Similarly, if any contamination either spread to or was released onto adjoining property as a result of Lessee's use of the airspace under lease, the Lessee shall be held similarly responsible. The Lessee shall indemnify, defend, and hold harmless the Department from any claim, loss, damage, cost, charge, or expense arising out of any such contamination. m. Existing utilities and all corresponding easements shall remain in place and Lessee shall not disturb or interfere with the same. 5. Indemnification. To the extent provided by law, Lessee shall indemnify, defend, and hold harmless the Department and all of its officers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission, or negligent act by Lessee, Its officers, agents, or employees, during the performance of the Agreement, except that neither Lessee, its agents, or its employees will be liable under this paragraph for any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission, or negligent act by the Department or any of its officers, agents, or employees during the performance of the Agreement. When the Department receives a notice of claim for damages that may have been caused by Lessee In the performance of services required under this Agreement, the Department will immediately forward the claim to Lessee. Lessee and the Department will evaluate the claim and report their findings to each other within fourteen (14) working days and will jointly discuss options in defending the claim. After reviewing the claim, the Department will determine whether to require the participation of Lessee in the defense of the claim or to require that Lessee defend the Department in such claim as described in this section. The Department's failure to promptly notify Lessee of a claim shall not act as a waiver of any right herein to require the participation in or defense of the claim by Lessee. The Department and Lessee will each pay its own expenses for the evaluation, settlement negotiations, and trial, if any. 6. Insurance. Lessee at its expense, shall maintain at all times during the term of this Agreement, public liability insurance protecting the Department and Lessee against any and all claims for injury and damage to persons and property, and for the loss of life or property occurring in, on, or about the land arising out of the act, negligence, omission, nonfeasance, or malfeasance of Lessee, its employees, agents, contractors, customers, licensees, and invitees. Such insurance shall be carried in a minimum amount of not less than One million dollars ($1,000,000.00 ) for bodily Injury or death to any one person or any number of persons In any one occurrence and not less than One million dollars ($ 1.000.000.00 ) for property damage, or a combined coverage of not less than One million dollars ($ 1.000ma.0o ), All such policies shall be issued by companies licensed to do business in the State of Florida and all such policies shall contain a provision whereby the same cannot be canceled or modified unless the Department is given at least sixty (60) days prior written notice of such cancellation or modification. Lessee shall provide the Department certificates showing such insurance to be in place and showing the Department as additional named insured under the policies. If self-insured or under a risk management program, Lessee represents that such minimum coverage for liability will be provided for the property. 7. Termination 575-060.32 RIGHT OF W AY 05M Pape 4 of 7 a. This Agreement may be terminated by either party without cause upon thirty (30 ) days prior written notice to the other party. b. It is understood and agreed to by the Lessee that the Department reserves the right to terminate this Agreement immediately without prior notice, in the event the Lessee violates any of the conditions of this Agreement and such violation is not corrected within a reasonable time after written notice of noncompliance has been given. In the event the Agreement is terminated and the Department deems it necessary to request the removal of the facility on the property, the removal shall be accomplished by the c. The Lessee must notify the Department of its intention to renew this Agreement not later than thirty (30) days prior to the expiration of the original term. Lessee's failure to comply with the foregoing notice provision may result in the Department's refusal to renew the Agreement. d. Upon termination of this Agreement, Lessee shall deliver the property to the Department, or its agents, in the condition existing at the commencement of this Agreement, normal wear and tear excepted, unless a facility, any improvement, or any part thereof has been constructed on the property. e. If removal of the facility, improvements, or any part thereof is requested by the Department, any such structures shall be removed by the Lessee at Lessee's expense by midnight of the day of termination of this Agreement and the property restored as nearly as practicable. f. This Agreement is terminable by the Department in the event that the facility ceases to be used for its intended purpose or is abandoned. 8. Eminent Domain Lessee acknowledges and agrees that its relationship with the Department under this Agreement is one of landlord and tenant arid no other relationship either expressed or implied shall be deemed to apply to the parties under this Agreement. Termination of this Agreement for any cause shall not be deemed a taking under any eminent domain or other law so as to entitle Lessee to compensation for any interest suffered or lost as a result of termination of this Agreement, including any residual interest in the Agreement or any other facts or circumstances arising out of or in connection with this Agreement. Lessee hereby waives and relinquishes any legal rights and monetary claims which it might have for full compensation, or damages of any sort, Including special damages, severance damages, removal costs, or'loss of business profits, resulting from Lessee's loss of occupancy of the property specified in this Agreement, or any such rights, claims, or damages flowing from adjacent properties owned or leased by Lessee as a result of Lessee's loss of occupancy of the property specified in this Agreement. Lessee also hereby waives and relinquishes any legal rights and monetary claims which it might have for full compensation, or damages of any sort as set out above, as a result of Lessee's loss of occupancy of the property, when any or all adjacent properties owned or leased by Lessee are taken by eminent domain proceedings or sold under the threat thereof. This waiver and relinquishment applies whether this Agreement is still in existence on the date of taking or sale or has been terminated prior thereto. 9. Miscellaneous a. The airspace and Lessee's rights under this Agreement shall not be transferred, assigned, or conveyed to another party without the prior written consent of the Department, subject to concurrence by the FHWA. b. In conformance with the Civil Rights Act of 1954 (Title VI, Appendix "C") and 49 CFR Part 21, Lessee agrees as follows: 1. That as a part of the consideration hereof, Lessee does hereby covenant and agree as a covenant running with the land that (1) no person, on the ground of race, color, sex, or national origin shall be excluded from participation In, be denied the benefits of, or be otherwise subjected to discrimination in the use of said property and facility; (2) that in connection with the construction of any Improvements on said property and facility and the furnishing of services thereon, no discrimination shall be practiced in the selection of employees and contractors, by contractors; and (3) that the Lessee shall use the property and facility in compliance with all other requirements imposed pursuant to 15 CFR Part 8, Subpart A. 575.081}32 RIQHT OF WAY 05!03 Pate 5 of 7 2. That In the event of breach of any of the above covenants, the Department shall have the right to terminate this Agreement and to re-enter and repossess said property and the facility thereon, and hold the some as if this Agreement had never been made or issued. c. During the term of this Agreement Lessee shall, at Lessee's own cost and expense, promptly observe and comply with all present or future laws, requirements, orders, directions, ordinances, and regulations of the United States of America, the State of Fautheri g the 1 Rd-,prepedy, a any part thereof, and of all insurance policies covering the property, land, and facility, or any part thereof. d. In addition to or in lieu of the terms and conditions contained heroin, the provisions of any Addendum of even date herewith which is identified to be a part hereof is hereby incorporated herein and made a part hereof by this reference. In the event of any conflict between the terms and conditions hereof and the provisions of the Addendum(s), the provisions of the Addendum(s) shall control, unless the provisions thereof are prohibited by law. e. This Agreement constitutes the complete and final expression of the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, or negotiations with respect thereto. Any provision hereof found to be unlawful or unenforceable shall be severable and shall not affect the validity of the remaining portions hereof. f. This Agreement shall not be recorded in the public records of any state, city, county, or other governmental entity. g. Lessee acknowledges that it has reviewed this Agreement, is familiar with its terms, and has had adequate opportunity to review this Agreement with legal counsel of Lessee's choosing. Lessee has entered into this Agreement freely and voluntarily. This Agreement contains the complete understanding of the parties with respect to the subject matter hereof. All prior understandings and agreements, oral or written, heretofore made between the parties and/or between Lessee and any previous owner of the property and landlord of Lessee are merged in this Agreement, which alone, fully and completely express the agreement between Lessee and the Department with respect to the subject matter hereof. No modification, waiver, or amendment of this Agreement or any of its conditions or provisions shall be binding upon the Department or Lessee unless in writing and signed by both parties. In. Lessee shall be solely responsible for all bills for electricity, lighting, power, gas, water, telephone, and telegraph services, or any other utility or service used on the properly. i. This Agreement shall be governed by the laws of the State of Florida, and any applicable laws of the United States of America. J. All notices to the Department shall be sent to the address for rent payments and all notices to Lessee shall be sent to the property address provided herein or otherwise provided in writing to the Department. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above written. STATE OF FLORIDA By: By: C—Im DistriSecretary Name:jJaArd I Name: John artinez Title:Manner Attest: I?" By: al) Name: Priscilla A. Thompson Title: City Clerk Approved as to Form and Correctness (City of Miami): By: Jorg . F ndez, City Attorney Eht f } Approved as to ura ce Requirements: By: U%t• t.C,0— slular Dania F. Carrillo Director, Risk Management Dept. S76-OW32 RIGHT OF WAY O5M3 PO4e6Of7 Attest: Name/Title: Legal Review: 13— r ct Cou sel Name: D. Michael Schloss 67&081}3:? RIGHT OF WAY asms Pape 7 Or 7 ADDENDUM TO AIRSPACE AGREEMENT Item/Segment No.: 2515611 FAP No.: 0951 0671 SR. No.: 1-95 County: Mlami-Dade Parcel No.: 0001/RWMS 1059 THIS AGREEMENT SHALL SERVE AS AN ADDENDUM to that certain Airspace Agreement between THE CITY OF MIAMI and the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) dated the �day of 7 AIE 2005. in addition to the provisions contained in said Agreement, the following terms and conditions shall be deemed to be a part thereof pursuant to Paragraph 9 (d). of said Agreement. SECTION 4: USE, OCCUPANCY AND MAINTENANCE No permanent structures or buildings will be allowed in the lease area. A glare screen will be installed and maintained around the lease area to hide the impounded vehicles. No storage will be permitted outside of the fenced area. Lessee has requested that Lessor approve of the Improvements to be constructed in the leased area as shown on the site plans, as described In Exhibit A, submitted by Lessee. Any changes or additions to those improvements, as described in Exhibit A, will require additional prior approval in writing by the District Secretary for District Six. All improvements shall be constructed in a good and workmanlike manner at Lessee's sole cost and expense. Improvements should not interfere with existing drainage and utilities in the right of way. Lessor reserves the right of access across the leased property to Inspect, maintain and repair Interstate 1-95 as necessary. All improvements and any refuse, contamination or other diminution of the property, occurring during THE CITY OF MIAMI's lease shall be removed or rectified as requested by FOOT. Lessor reserves the right to inspect, at any time, during the construction of said improvements and require changes and modifications at Lassoes sole discretion. Lessee shall implement such requests for changes or modifications immediately, at Lessee's sole cost and expense, upon notification by Lessor's authorized representative. Any improvements constructed by Lessee shall be removed by the Lessee, at Lessee's sole cost and expense by midnight on the day of termination of this agreement and the land restored as nearly as practical to its condition at the time the CITY OF MIAMI POLICE DEPARTMENT began occupation of the leased area. Portable or temporary advertising signs are prohibited. c. and d. The City of Miami has supplied a combined survey & legal description, referenced in the lease as Exhibit A, which also shows the general design for use of the airspace and Improvements made to the leased area, referenced in 4 (c) and (d) as Exhibit B. The combined Exhibit is attached and shown as Exhibit A. SECTION 6: INSURANCE Lessee is self insured in accordance with, and subject to the limitations set forth in Section 768.28, Florida Statutes. Lessor accepts Lessee's Insurance coverage and agrees it satisfies the requirements of Section 6 of the Agreement.