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HomeMy WebLinkAboutexhibitSTATE OF FLORIDA DEPARTAAENT OF TRANSPORTATION AIRSPACE AGREEMENT ITEM/SEGMENT NO.: 2515031 575-060.32 RIGHT GF WAY 0503 .' 7 MANAGING DISTRICT: Six F.A.P. NO.: I-395-1(85)3 STATE ROAD NO.: 1-395 COUNTY.: Miami -Dade PARCEL NO.; 6001 (MPA Parcel/Lot 1) THIS AGREEMENT, made this day of , between THE DEPARTMENT OF OFF- at STREET PARKING OF THE CITY OF MIAMI alk/a MIAMI PARKING AUTHORITY (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, Tying 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 Highway 395 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: public parking lot 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 (5) years beginning with the date of this Agreement. One renewal of this Agreement may be made for a single five (5) Year term . However, except for a public purpose conveyance, such 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. K; O? O(L C 3. Rent a. Lessee shall pay to the Department as each rent payment period, See Addendum rent and sales tax payment shall be refunded violation of a term or condition of this Agreem 575-060.32 RIGHT OF WAY 0503 Pape 2 01 7 rent each 0 month 0 quarter Q year on or before the first day of plus applicable sales tax. When this Agreement is terminated, any unearned to Lessee. However, no such refund shall be made where termination is due to Lessee's ent. b. The Department reserves the right to review and adjust the rental fee biennually and at renewal to reflect market conditions. c. Ali 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, Room 6116, 1000 NW 111th Avenue, 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 10 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: This Is a public purpose lease. The use of the space is a public parking lot. The lot must be available to the public at all times. Any revenues collected may not be directed to area businesses. 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 "6" 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 "B" 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. 575.060-32 RIGHT OF WAY 05 03 Palle 3 0l 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 IIfe 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 Two million dollars ($ 2.000-000.00 ) 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 a. This Agreement may be terminated by either party without cause upon thirty 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 atter 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 Lessee in a manner prescribed by the Department at no cost to the Department or the FHWA. 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. 575-060.32 RIGHT OF WAY OS 03 pane 4 W ( 30 ) days prior written notice to the d. Upon termination of this Agreement, Lessee shalt 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 and 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 interestsuffered 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 ofany 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 1964 (Title VI, Appendix IC") 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-O5o.3z RIGHT OF WAY 0503 Pace 5 7! 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 same 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 Florida, county or local governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or 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 herein, 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. 1. 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. Ail 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. h. 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 property. 1. This Agreement shall be govemed by the laws of the State of Florida, and any applicable laws of the United States of America. J. Ail 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. 1N WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above written. By: Name: Title: Attest: Name: Title: 575.060.32 RIGHT OF WAY 05r03 Pape 6 o1 7 STATE OF FLORIDA The Department of Off -Street Parking DEPARTMENT OF TRANSPORTATION LESSEE (Company Name, if applicable) (Seal) By: Name: Attest: Name/Title: District Secretary John Martinez Legal Review: District Counsel Name: D. Michael Schloss ADDENDUM TO LEASE AGREEMENT Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6001(MPAParceVLotl) THIS AGREEMENT SHALL SERVE AS AN ADDENDUM to that certain Airspace Agreement between THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI a/k/a MIAMI PARKING AUTHORITY and THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) dated the day of, 2003. 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 (b) of said Agreement: Section 3. RENT. It is mutually agreed upon by both parties that the Lessee shall pay the Lessor an annual rental of $ 1.00 the first payment thereof being due and payable on or before and on or before the anniversary date of each succeeding year thereafter until such time as the actual construction costs are fully amortized. All revenues collected from the lot will be applied first to the costs of operation and maintenance of the lot including appropriate administrative overhead, not to exceed fifteen percent (15%) of gross revenues, and the remainder to amortization of the costs attributable to the construction of the lot. After such time as the capital investment is fully amortized, all further revenue above the ongoing costs of operation and maintenance of the parking lot will be distributed on the following basis: (1) The Lessee will retain one-half (1/2) of all excess revenues after operational . and maintenance, including administrative overhead, have been deducted. (2) The Lessor will be paid one-half (1/2) of all excess revenues after operational expenses and maintenance, including administrative overhead, have been deducted. Payment of excess revenues shall be made quarterly on or before the 20a' day of the month following the quarter in which such revenues are received. Each quarterly payment shall be accompanied by a sworn statement, which shall state the total amount of revenues for the period covered and the computation of the Lessor's portion. Such sworn statement shall itemize and allocate all expenditure. The Lessee shall pay the Lessor's portion of the excess revenues and submit all revenue reports required by this arrangement to the following stated address: Property Management Administrator, R/W Administration Florida Department of Transportation, Room 6118 1000 NW 11It Avenue, Miami, Florida 33172 Page Two Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6001(MPA Parcel/Lotl) The Lessee shall maintain a set of books, accounts and records covering the operations that are subject to this Agreement, said books, accounts and records to be of the same type as those customarily used in these types of operations in accordance with accepted accounting practices and standards for such period of time as is provided herein. The Lessor shall be permitted to examine and audit, during ordinary business hours, by or through its officers, employees or representatives of the Lessor, such records and books of account, provided that the Lessee shall not be required to maintain such records and books of account pertaining to operations within the demised premises occurring during any annual period for more than three (3) years after the end of each annual period. Section 4. IMPROVEMENTS. No permanent structures or buildings will be allowed in the lease 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 B, submitted by Lessee. Any changes or additions to those improvements, as described in Exhibit B, 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 theleasedproperty to inspect, maintain and repair Interstate I-395 as necessary. All improvements and any refuse, contamination or other • diminution of the property, occurring during the THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI's lease shall be removed or rectified as requested by FDOT. A complete and final total of construction costs of the improvements shall be provided within six months of the completion of such work. Such final total shall be regarded as the capital investment to be amortized. All improvements within the leased area are to be completed within six (6) months of the execution of this lease. Lessor reserves the right to inspect, at any time, during the construction of said improvements and require changes and modifications at Lessor's sole discretion. Lessee shall implement such requests for changes or modifications immediately, at Lessee's sole cost and expense, uponnotification 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 agreement is executed. Portable or temporary advertising signs are prohibited. Page Three Item/Segment FAP No. SR No. County Parcel No. No. 2515031 1-395-1(85)3 1-395 Miami -Dade 6001(MPA ParceVLot 1) AN ADDENDUM made this day of , 2003, TO LEASE AGREEMENT, dated day of , 2003. Alt other terms and conditions of the Lease Agreement remain unchanged and with this confirmed and ratified by Lessor and Lessee. LESSOR: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: District Six Secretary LESSEE: THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: TITLE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AIRSPACE AGREEMENT ITEM/SEGMENT NO.: 2515031 575.060-32 RIGHT OF WAY 05/03 Page 1 DI 7 MANAGING DISTRICT: Six F.A.P. NO.: 1-395-1(85)3 STATE ROAD NO.: I-395 COUNTY.: Miami -Dade PARCEL NO.: 6006 (MPA Parcel/Lot 2) THIS AGREEMENT, made this day of , between THE DEPARTMENT OF OFF- at STREET PARKING OF THE CITY OF MIAMI a/k/a MIAMI PARKING AUTHORITY (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 Highway 395 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: public parking lot 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. ) um The Department does hereby lease unto Lessee the airspace above or below gradeline of the property for a period of five (5) years beginning with the date of this Agreement. One renewal of this Agreement may be made for a single five (5)year term . However, except for a public purpose conveyance, such renewal may not exceed five years. Nothing herein shall be construed to In any way grant an interest in the property Tying below said airspace. 575.060-32 RIGHT OF WAY 05/03 Rape 2 01 7 3. Rent a. Lessee shall pay to the Department as rent each 0 month 0 quarter t year on or before the first day of each rent payment period, See Addendum 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 shall 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 biennually 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, Room 6116, 1000 NW 111th Avenue, 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: This is a public purpose lease. The use of the space is a public parking lot. The lot must be available to the public at all times. Any revenues collected may not be directed to area businesses. 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 "13" attached hereto and by this reference made a part hereof. In addition, said composite Exhibit NB" also contains a three-dimensional description of the space to be used, unless the use is ofa 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 'B" 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. 575-060•32 RIGHT OF WAY 05103 Page 3 of 7 E. 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. f. 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, Toss, 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, Toss, 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 ail 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, fts 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 Two million dollars ($ ?.ano.M° no ) 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 WAY 05r03 Papa a 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 atter 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 Lessee in a manner prescribed by the Department at no cost to the Department or the FHWA. 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 refusaf 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 and 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 1964 (Title VI, Appendix NCI) 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. 575-060-32 RIGHT OF WAY 05/03 Pape 5 at 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 same 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 Florida, county or local governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or 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 herein, 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 notaffect 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. h. 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 property. I. This Agreement shall be govemed 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. By: Name: Title: Attest: Name: Title: 575.060.32 RIGHT OF WAY 05)03 Pace 6 of 7 STATE OF FLORIDA The Department of Off -Street Parking DEPARTMENT OF TRANSPORTATION LESSEE (Company Name, if applicable) (Seal) By: Name: Attest: Name/Title: District Secretary John Martinez Legal Review: District Counsel Name: D. Michael Schloss ADDENDUM TO LEASE AGREEMENT Item/Segment No. 2515031 FAP No. 1-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6006(MPA Parcel/Lot2) THIS AGREEMENT SHALL SERVE AS AN ADDENDUM to that certain Airspace Agreement between THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI a/k/a MIAMI PARKING AUTHORITY and THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) dated the day of, 2003. 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 (b) of said Agreement: Section 3. RENT. It is mutually agreed upon by both parties that the Lessee shall pay the Lessor an annual rental of $ 1.00 the first payment thereof being due and payable on or before and on or before the anniversary date of each succeeding year thereafter until such time as the actual construction costs are fully amortized. All revenues collected from the lot will be applied first to the costs of operation and maintenance of the lot including appropriate administrative overhead, not to exceed fifteen percent (15%) of gross revenues, and the remainder to amortization of the costs attributable to the construction of the lot. After such time as the capital investment is fully amortized, all further revenue above the ongoing costs of operation and maintenance of the parking lot will be distributed on the following basis: (1) The Lessee will retain one-half (1/2) of all excess revenues after operational and maintenance, including administrative overhead, have been deducted. (2) The Lessor will be paid one-half (1/2) of all excess revenues after operational expenses and maintenance, including administrative overhead, have been deducted. Payment of excess revenues shall be made quarterly on or before the 20th day of the month following the quarter in which such revenues are received. Each quarterly payment shall be accompanied by a sworn statement, which shall state the total amount of revenues for the period covered and the computation of the Lessor's portion. Such sworn statement shall itemize and allocate all expenditure. The Lessee shall pay the Lessor's portion of the excess revenues and submit all revenue reports required by this arrangement to the following stated address: Property Management Administrator, R/W Administration Florida Department of Transportation, Room 6118 1000 NW 111t Avenue, Miami, Florida 33172 Page Two Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6006(MPA Parcel/Lot2) The Lessee shall maintain a set of books, accounts and records covering the operations that are subject to this Agreement, said books, accounts and records to be of the same type as those customarily used in these types of operations in accordance with accepted accounting practices and standards for such period of time as is provided herein. The Lessor shall be permitted to examine and audit, during ordinary business hours, by or through its officers, employees or representatives of the Lessor, such records and books of account, provided that the Lessee shall not be required to maintain such records and books of account pertaining to operations within the demised premises occurring during any annual period for more than three (3) years after the end of each annual period. Section 4. IMPROVEMENTS. No permanent structures or buildings will be allowed in the lease 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 B, submitted by Lessee. Any changes or additions to those improvements, as described in Exhibit B, 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 I-395 as necessary. All improvements and any refuse, contamination or other diminution of the property, occurring during the THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI's lease shall be removed or rectified as requested by FDOT. A complete and final total of construction costs of the improvements shall be provided within six months of the completion of such work. Such final total shall be regarded as the capital investment to be amortized. All improvements within the leased area are to be completed within six (6) months of the execution of this lease. Lessor reserves the right to inspect, at any time, during the construction of said improvements and require changes and modifications at Lessor's 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 agreement is executed. Portable or temporary advertising signs are prohibited. Page Three Item/Segment No. 2515031 FAP No. 1-395-1(85)3 SR No. I-395 County Miami -Dade Parcel No. 6006(NIPA Parcel/L.ot2) AN ADDENDUM made this day of , 2003, TO LEASE AGREEMENT, dated day of , 2003. All other terms and conditions of the Lease Agreement remain unchanged and with this confirmed and ratified by Lessor and Lessee. LESSOR: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: District Six Secretary LESSEE: THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: TITLE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AIRSPACE AGREEMENT ITEM/SEGMENT NO.: 2515031 MANAGING DISTRICT: Six 5 TS•OW-32 RIGHT OF WAY OS•Os Pace I F.A.P. NO.: 1-395-1(85)3 STATE ROAD NO.: 1-395 COUNTY.: Miami -Dade PARCEL NO.: 6005 (MPA Parcel/Lot 3) THIS AGREEMENT, made this day of , between THE DEPARTMENT OF OFF- at STREET PARKING OF THE CITY OF MIAMI alkfa MIAMI PARKING AUTHORITY (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 properly, 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 highways 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 Highway 395 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: public parking lot 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 (5) years beginning with the date of this Agreement. One renewal of this Agreement may be made for a single five () year term . However, except for a public purpose conveyance, such 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. ko3 (o 575,060-32 RIGHT OF WAY 05103 Pape of 7 3. JRent a. Lessee shall pay to the Department as rent each 0 month 0 quarter Q year on or before the first day of each rent payment period, See Addendum plus applicable sales tax. When this Agreement is terminated, any unearned rent and sates tax payment shall be refunded to Lessee. However, no such refund shall 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 biennually 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, Room 6116, 1000 NW 111th Avenue, 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: This is a public purpose lease. The use of the space is a public parking lot. The lot must be available to the public at all times. Any revenues collected may not be directed to area businesses. 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 "B" 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 10 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 "B" 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. 5 75-01 0 • 32 RIGHT OF WAY OS'03 Paoe 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. 1. 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 ail 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 lability 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 Two milion dollars ($ 2.n40.000.00 ) 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 WAY 05'03 Pace a 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 vi¢lation 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 Lessee In a manner prescribed by the Department at no cost to the Department or the FHWA. 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 ag nts, in the condition existing at the commencement of this Agreement, normal wear and tear excepted, unless a facility, any improverrtent, 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 suchstructures shall be removed by the Lessee at Lessee's expense by midnight of the day of termination of this Agreement and te 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 and no other relationship either expressed or implied shall be deemed to apply to the parties under this Agreenient. 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 damges flowing from adjacent properties owned or leased by Lessee as a result of Lessee's loss of occupancy of the property specified I 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 1964 (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 sald 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. 575.060-32 fl1GHT OF WAY 05,03 Page 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 same 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 ail present or future laws, requirements, orders, directions, ordinances, and regulations of the United States of America, the State of Florida, county or local governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or 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 herein, 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. h. Lessee shall be solely responsible for all bills for electricity, fighting, power, gas, water, telephone, and telegraph services, or any other utility or service used on the property. 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. By: Name: Title: Attest: Name: Title: 75.060.32 ftrOHT OF WAY 05,03 Paw,6 or STATE OF FLORIDA The Department of Off -Street Parking DEPARTMENT OF TRANSPORTATION LESSEE (Company Name, if applicable) (Seal) By: Name: Attest: Name/Title: District Secretary John Martinez Legal Review: District Counsel Name: D. Michael Schloss ADDENDUM TO LEASE AGREEMENT Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. I-395 County Miami -Dade Parcel No. 6005(MPA Parcel/Lot3) THIS AGREEMENT SHALL SERVE AS AN ADDENDUM to that certain Airspace Agreement between THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI a/k/a NIIAMI PARKING AUTHORITY and THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) dated the day of, 2003. 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 (b) of said Agreement: Section 3. RENT. It is mutually agreed upon by both parties that the Lessee shall pay the Lessor an annual rental of $ 1.00 the first payment thereof being due and payable on or before and on or before the anniversary date of each succeeding year thereafter until such time as the actual construction costs are fully amortized. All revenues collected from the lot will be applied first to the costs of operation and maintenance of the lot including appropriate administrative overhead, not to exceed fifteen percent (15%) of gross revenues, and the remainder to amortization of the costs attributable to the construction of the lot. After such time as the capital investment is fully amortized, all further revenue above the ongoing costs of operation and maintenance of the parking lot will be distributed on the following basis: (1) The Lessee will retain one-half (1/2) of all excess revenues after operational and maintenance, including administrative overhead, have been deducted. (2) The Lessor will be paid one-half (1/2) of all excess revenues after operational expenses and maintenance, including administrative overhead, have been deducted. Payment of excess revenues shall be made quarterly on or before the 20th day of the month following the quarter in which such revenues are received. Each quarterly payment shall be accompanied by a sworn statement, which shall state the total amount of revenues for the period covered and the computation of the Lessor's portion. Such sworn statement shall itemize and allocate all expenditure. The Lessee shall pay the Lessor's portion of the excess revenues and submit all revenue reports required by this arrangement to the following stated address: Property Management Administrator, R/W Administration Florida Department of Transportation, Room 6118 1000 NW 111 `s Avenue, Miami, Florida 33172 Page Two Item/Segment No. 2515031 FAP No. 1-395-1(85)3 SR No. I-395 County Miami -Dade Parcel No. 6005(MPA Parcel/Lot3) The Lessee shall maintain a set of books, accounts and records covering the operations that are subject to this Agreement, said books, accounts and records to be of the same type as those customarily used in these types of operations in accordance with accepted accounting practices and standards for such period of time as is provided herein. The Lessor shall be permitted to examine and audit, during ordinary business hours, by or through its officers, employees or representatives of the Lessor, such records and books of account, provided that the Lessee shall not be required to maintain such records and books of account pertaining to operations within the demised premises occurring during any annual period for more than three (3) years after the end of each annual period. Section 4. IMPROVEMENTS. No permanent structures or buildings will be allowed in the lease 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 B, submitted by Lessee. Any changes or additions to those improvements, as described in Exhibit B, 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 1-395 as necessary. All improvements and any refuse, contamination or other diminution of the property, occurring during the THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF M1AMI's lease shall be removed or rectified as requested by FDOT. A complete and final total of construction costs of the improvements shall be provided within six months of the completion of such work. Such final total shall be regarded as the capital investment to be amortized. All improvements within the leased area are to be completed within six (6) months of the execution of this lease. Lessor reserves the right to inspect, at any time, during the construction of said improvements and require changes and modifications at Lessor's 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 agreement is executed. Portable or temporary advertising signs are prohibited. Page Three Item/Segment No. 25 1 5031 FAP No. I-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6005(MPA Parcel/Lot3) AN ADDENDUM made this day of , 2003, TO LEASE AGREEMENT, dated day of 2003. All other terms and conditions of the Lease Agreement remain unchanged and with this confirmed and ratified by Lessor and Lessee. LESSOR: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: District Six Secretary LESSEE: THE DEPARTMENT OF OFF-STREET PARTING OF THE CITY OF MIAMI By: TITLE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AIRSPACE AGREEMENT ITEM/SEGMENT NO.: 2515031 575-060-32 RIGHT OF WAY OS03 Paco I oI 7 MANAGING DISTRICT: Six F.A.P. NO.: I-395-1(85)3 STATE ROAD NO.: 1-395 COUNTY.: Miami -Dade PARCEL NO.: 6004 (MPA ParceVLot 4) THIS AGREEMENT, made this day of , between THE DEPARTMENT OF OFF- at STREET PARKING OF THE CITY OF MIAMI alk/a MIAMI PARKING AUTHORITY (Lessee) and the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (Department), an agency of the Slate 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, Tying 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 Highway 395 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 pail hereof for the following purpose: public parking lot 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. Tenn The Department does hereby lease unto Lessee the airspace above or below gradeline of the property for a period of five (5)years beginning with the date of this Agreement. One renewal of this Agreement may be made for a single five (5) year term . However, except for a public purpose conveyance, such 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. 575-060.32 RIGHT OF WAY 05:03 Pica 2 :} 3. Rent a. Lessee shall pay to the Department as rent each 0 month 0 quarter Q year on or before the first day of each rent payment period, See Addendum 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 shall 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 biannually 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, Room 6116, 1000 NW 111 th Avenue, 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. Qccupancv. 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: This is a public purpose lease. The use of the space is a public parking lot, The lot must be available to the public at all times. Any revenues collected may not be directed to area businesses. 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 "B" 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 "B" 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. 575-060.32 RIGHT of w w 0s03 pace 3 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 10 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. I. 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 Toss 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 Two million dollars ($ p ono 000 00 ) Alt 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 WAY 05,43 Pace 1 c! a. This Agreement may be terminated by either party without cause upon thirty (30 ) days prior written notice to the other party. b. 11 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 Lessee in a manner prescribed by the Department at no cost to the Department or the FHWA. 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 and no other relationship either expressed or €mptied shall be deemed to apply to the parties under this Agreement. Termination of this Agreement for any cause shalt 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 Toss of occupancy of the property specified In this Agreement, or any such rights, claims, or damages flowing from adjacent properties owned or (eased 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 1964 (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. 575.060.32 rAJGr+r OF WAV 65.03 2. That in the event of breach of any of the above covenants, the Department shall have the right to terminate this Agreement and 10 re-enter and repossess said property and the facility thereon, and hold the same 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 Florida, county or local governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or 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 herein, 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 shalt 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 atone, 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. h. 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 property. 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. By: Name: Title: Attest: Name: Title: 575.060.32 HIGH T OF WAY 05/03 Paoa 6 of 7 STATE OF FLORIDA The Department of Off -Street Parking DEPARTMENT OF TRANSPORTATION LESSEE (Company Name, if applicable) (Seal) By: Name: Attest: NamerTtle: District Secretary John Martinez Legal Review: District Counsel Name: D. Michael Schloss ADDENDUM TO LEASE AGREEMENT Itern/Segment No. 25 I 5031 FAP No. 1-395- l (85)3 SR No. I-395 County Miami -Dade Parcel No. 6004(MPA ParceVLot4) THIS AGREEMENT SHALL SERVE AS AN ADDENDUM to that certain Airspace Agreement between THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI a/k/a MIAMI PARKING AUTHORITY and THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) dated the day of, 2003. 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 (b) of said Agreement: Section 3. RENT. It is mutually agreed upon by both parties that the Lessee shall pay the Lessor an annual rental of $ 1.00 the first payment thereof being due and payable on or before and on or before the anniversary date of each succeeding year thereafter until such time as the actual construction costs are fully amortized. All revenues collected from the lot will be applied first to the costs of operation and maintenance of the lot including appropriate administrative overhead, not to exceed fifteen percent (15%) of gross revenues, and the remainder to amortization of the costs attributable to the construction of the lot. After such time as the capital investment is fully amortized, all further revenue above the ongoing costs of operation and maintenance of the parking lot will be distributed on the following basis: (1) The Lessee will retain one-half (1/2) of all excess revenues after operational and maintenance, including administrative overhead, have been deducted. (2) The Lessor will be paid one-half (1/2) of all excess revenues after operational expenses and maintenance, including administrative overhead, have been deducted. Payment of excess revenues shall be made quarterly on or before the 20t day of the month following the quarter in which such revenues are received. Each quarterly payment shall be accompanied by a sworn statement, which shall state the total amount of revenues for the period covered and the computation of the Lessor's portion. Such sworn statement shall itemize and allocate all expenditure. The Lessee shall pay the Lessor's portion of the excess revenues and submit all revenue reports required by this arrangement to the following stated address: Property Management Administrator, R/W Administration Florida Department of Transportation, Room 6118 1000 NW l I la' Avenue, Miami, Florida 33172 Page Two Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. I-395 County Miami -Dade Parcel No. 6004(MPA Parcel/Lot4) The Lessee shall maintain a set of books, accounts and records covering the operations that are subject to this Agreement, said books, accounts and records to be of the same type as those customarily used in these types of operations in accordance with accepted accounting practices and standards for such period of time as is provided herein. The Lessor shall be permitted to examine and audit, during ordinary business hours, by or through its officers, employees or representatives of the Lessor, such records and books of account, provided that the Lessee shall not be required to maintain such records and books of account pertaining to operations within the demised premises occurring during any annual period for more than three (3) years after the end of each annual period. Section 4. IMPROVEMENTS. No permanent structures or buildings will be allowed in the lease 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 B, submitted by Lessee. Any changes or additions to those improvements, as described in Exhibit B, 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 I-395 as necessary. All improvements and any refuse, contamination or other diminution of the property, occurring during the THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI's lease shall be removed or rectified as requested by FDOT. A complete and final total of construction costs of the improvements shall be provided within six months of the completion of such work. Such final total shall be regarded as the capital investment to be amortized. All improvements within the leased area are to be completed within six (6) months of the execution of this lease. Lessor reserves the right to inspect, at any time, during the construction of said improvements and require changes and modifications at Lessor's 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 agreement is executed. Portable or temporary advertising signs are prohibited. Page Three Item/Segment FAP No. SR No. County Parcel No. No. 2515031 I-395- I (85)3 I-395 Miami -Dade 6004(MPA Parcel/Lot4) AN ADDENDUM made this day of 2003, TO LEASE AGREEMENT, dated day of 2003. All other terms and conditions of the Lease Agreement remain unchanged and with this confirmed and ratified by Lessor and Lessee. LESSOR: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: District Six Secretary LESSEE: THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: TITLE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AIRSPACE AGREEMENT ITEM/SEGMENT NO,: 2515031 MANAGING DISTRICT: Six F.A.P. NO.: 1-395-1(85)3 STATE ROAD NO.: 1-395 575.060-32 fltGHT OF WAY 05.03 Panet�r, COUNTY.: Miami -Dade PARCEL NO.: 6007 (MPA ParceVLot 5) THIS AGREEMENT, made this day of , between THE DEPARTMENT OF OFF- at STREET PARKING OF THE CITY OF MIAMI a/k/aMIAMI PARKING AUTHORITY (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 Highway 395 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: public parking lot 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. Ternt The Department does hereby lease unto Lessee the airspace above or below gradeline of the property for a period of five (5) years beginning with the date of this Agreement. One renewal of this Agreement may be made for a single five (5) year term purpose conveyance, such renewal may not exceed five years. Nothing herein shaft be construed tolin any way g ant fan a public interest in the property lying below said airspace. K: ti3 ki0 575.O6O-12 RIGHT OF WAY OS02 Page 2 cl 7 3. Rent a. Lessee shall pay to the Department as rent each 0 month each rent payment period, See Addendumpapp0 quarter Q year on or before the first day of ny rent and sales tax payment shall be refunded to Lessee. However, no such refund shall be made whe ee sales tax. When this Agreement isttermination ts due torned Lessee's violation of a term or condition of this Agreement. b. The Department reserves the right to review and adjust the rental fee biennually and at renewal to reflect market conditions. c. Ali 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, Room 6116, 1000 NW 111th Avenue, Miam(Florida 33172 d. Lessee shall be responsible for ail 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: This Is a public purpose lease. The use of the space is a public parking lot. The lot must be available to the public at all times. Any revenues collected may not be directed to area businesses. 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 "B" attached hereto and by this reference made a part hereof. In addition, said composite Exhibit "8" 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 "8" 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.O60-32 RIGHT OF WAY OSO3 Pace 3 or 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. Jnsurance. 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 fess 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 ptillion dollars ($ 1.000.000.00 ) for property damage, or a combined coverage of not less than Two million dollars ($ 2 nnn 004 00 ) Alt 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 575.0G0-32 AIGF{T OF WAY 05r03 Pape 4 al 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 Lessee in a manner prescribed by the Department at no cost to the Department or the FHWA. 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 and 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 Toss 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 1964 (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. 575-060-32 RIGHT OF WAY 05/05 Pamir 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 same 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 Florida, county or local governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or 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 herein, 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. Ail 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. h. Lessee shall be solely responsible for all bills for electricity, fighting, power, gas, water, telephone, and telegraph services, or any other utility or service used an the property. I. This Agreement shall be govemed 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. By: Name: Title: Attest: Name: Title: 575.060.32 RIGHT OF WAY 0503 page 6 of 7 STATE OF FLORIDA The Department of Off -Street Parking DEPARTMENT OF TRANSPORTATION LESSEE (Company Name, if applicable) (Seal) By: Name: Attest: Namemtie: District Secretary John Martinez Legal Review: District Counsel Name: D. Michael Schloss ADDENDUM TO LEASE AGREEMENT Item/Segment No. 2515031 FAP No. 1-395-1(85)3 SR No. I-395 County Miami -Dade Parcel No. 6007(MPA Parcel/Lot 5) THIS AGREEMENT SHALL SERVE AS AN ADDENDUM to that certain Airspace Agreement between THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI a/k/a MIAMI PARKING AUTHORITY and THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) dated the day of, 2003. 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 (b) of said Agreement: Section 3. RENT. It is mutually agreed upon by both parties that the Lessee shall pay the Lessor an annual rental of $ 1.00 the first payment thereof being due and payable on or before and on or before the anniversary date of each succeeding year thereafter until such time as the actual construction costs are fully amortized. All revenues collected from the lot will be applied first to the costs of operation and maintenance of the lot including appropriate administrative overhead, not to exceed fifteen percent (15%) of gross revenues, and the remainder to amortization of the costs attributable to the construction of the lot. After such time as the capital investment is fully amortized, all further revenue above the ongoing costs of operation and maintenance of the parking lot will be distributed on the following basis: (1) The Lessee will retain one-half (1/2) of all excess revenues after operational and maintenance, including administrative overhead, have been deducted. (2) The Lessor will be paid one-half (1/2) of all excess revenues after operational expenses and maintenance, including administrative overhead, have been deducted. Payment of excess revenues shall be made quarterly on or before the 20th day of the month following the quarter in which such revenues are received. Each quarterly payment shall be accompanied by a sworn statement, which shall state the total amount of revenues for the period covered and the computation of the Lessor's portion. Such sworn statement shall itemize and allocate all expenditure. The Lessee shall pay the Lessor's portion of the excess revenues and submit all revenue reports required by this arrangement to the following stated address: Property Management Administrator, R/W Administration Florida Department of Transportation, Room 6118 1000 NW 111t Avenue, Miami, Florida 33172 Page Two Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. I-395 County Miami -Dade Parcel No. 6007(MPA Parcel/Lot5) The Lessee shall maintain a set of books, accounts and records covering the operations that are subject to this Agreement, said books, accounts and records to be of the same type as those customarily used in these types of operations in accordance with accepted accounting practices and standards for such period of time as is provided herein. The Lessor shall be permitted to examine and audit, during ordinary business hours, by or through its officers, employees or representatives of the Lessor, such records and books of account, provided that the Lessee shall not be required to maintain such records and books of account pertaining to operations within the demised premises occurring during any annual period for more than three (3) years after the end of each annual period. Section 4. IMPROVEMENTS. No permanent structures or buildings will be allowed in the lease 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 B, submitted by Lessee. Any changes or additions to those improvements, as described in Exhibit B, 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 I-395 as necessary. All improvements and any refuse, contamination or other diminution of the property, occurring during the THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI's lease shall be removed or rectified as requested by FDOT. A complete and final total of construction costs of the improvements shall be provided within six months of the completion of such work. Such final total shall be regarded as the capital investment to be amortized. All improvements within the leased area are to be completed within six (6) months of the execution of this lease. Lessor reserves the right to inspect, at any time, during the construction of said improvements and require changes and modifications at Lessor's 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 agreement is executed. Portable or temporary advertising signs are prohibited. Page Three ltem/Segment No. 2515031 FAP No. 1-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6007(MPA Parcel/Lot5) AN ADDENDUM made this day of , 2003, TO LEASE AGREEMENT, dated day of , 2003. All other terms and conditions of the Lease Agreement remain unchanged and with this confirmed and ratified by Lessor and Lessee. LESSOR: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: District Six Secretary LESSEE: THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: TITLE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AIRSPACE AGREEMENT ITEM/SEGMENT NO.: 2515031 5,5-Uo0-J2 RIGHT Or WAY uSU3 Paae 1 of MANAGING DISTRICT: Six F.A.P. NO.: 1-395-1(85)3 STATE ROAD NO.: 1-395 COUNTY.: Miami -Dade PARCEL NO,: 6002 (MPA ParceVLot 6) THIS AGREEMENT, made this day of , between THE DEPARTMENT OF OFF- at STREET PARKING OF THE CITY OF MIAMI a/k/aMIAMI PARKING AUTHORITY (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 Highway 395 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: public parking lot WHEREAS, the proposed use will not Impair the hill 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 (5) years beginning with the date of this Agreement. One renewal of this Agreement may be made for a single five (5) year term . However, except for a public purpose conveyance, such renewal may not exceed five years. Nothing herein shall be construed to in any way grans an Interest In the property lying below said airspace. K3(90 2. 575-060-32 RIGHT OF WAY OS03 Page 2 al 7 3. Rent a. Lessee shall pay to the Department as rent each 0 month 0 quarter year on or before the first day of each rent payment period, See Addendum 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 shall 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 biennually 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, Room 6116, 1000 NW 111th Avenue, 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: This is a public purpose lease. The use of the space Is a public parking lot. The lot must be available to the public at all times. Any revenues collected may not be directed to area businesses. 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 "B" 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 "6" 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. 575-060.32 RIGHT OF WAY 0S03 Pape 3 i 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. 1. 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 remedlation 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, Toss, 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. Jnsurance. 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 Tess than One million dollars ($ 1.0[10.000.00 ) for property damage, or a combined coverage of not less than Two million dollars ($ p onn-000.00 ) 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 WAY 05,03 Pa09 4 0I 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 Lessee In a manner prescribed by the Department at no cost to the Department or the FHWA. 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 and 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 1964 (Title VI, Appendix NCI) 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-G6GL:12 RIGHT OF WAY 05.03 Paae 5 0f 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 same 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 Florida, county or local governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or 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 herein, 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. h. 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 property. 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. Ail 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. By: Name: Title: Attest: Name: Title: 575.060-32 RIGHT OF WAY 05103 Pape 6 of 7 STATE OF FLORIDA The Department of Off -Street Parking DEPARTMENT OF TRANSPORTATION LESSEE (Company Name, if applicable) (Seal) By: Name: Attest: NameMtle: District Secretary John Martinez Legal Review: District Counsel Name: D. Michael Schloss ADDENDUM TO LEASE AGREEMENT Item/Segment No. 2515031 FAP No. 1-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6002(MPA Parcel/Lot 6) THIS AGREEMENT SHALL SERVE AS AN ADDENDUM to that certain Airspace Agreement between THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI a/k/a MIAMI PARKING AUTHORITY and THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (FllOT) dated the day of, 2003. 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 (b) of said Agreement: Section 3. RENT. It is mutually agreed upon by both parties that the Lessee shall pay the Lessor an annual rental of $ 1.00 the first payment thereof being due and payable on or before and on or before the anniversary date of each succeeding year thereafter until such time as the actual construction costs are fully amortized. All revenues collected from the lot will be applied first to the costs of operation and maintenance of the lot including appropriate administrative overhead, not to exceed fifteen percent (15%) of gross revenues, and the remainder to amortization of the costs attributable to the construction of the lot. After such time as the capital investment is fully amortized, all further revenue above the ongoing costs of operation and maintenance of the parking lot will be distributed on the following basis: (1) The Lessee will retain one-half (1/2) of all excess revenues after operational .and maintenance, including administrative overhead, have been deducted. (2) The Lessor will be paid one-half (1/2) of all excess revenues after operational expenses and maintenance, including administrative overhead, have been deducted. Payment of excess revenues shall be made quarterly on or before the 20th day of the month following the quarter in which such revenues are received. Each quarterly payment shall be accompanied by a sworn statement, which shall state the total amount of revenues for the period covered and the computation of the Lessor's portion. Such sworn statement shall itemize and allocate all expenditure. The Lessee shall pay the Lessor's portion of the excess revenues and submit all revenue reports required by this arrangement to the following stated address: Property Management Administrator, R/W Administration Florida Department of Transportation, Room 6118 1000 NW 111`s Avenue, Miami, Florida 33172 Page Two Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. I-395 County Miami -Dade Parcel No. 6002(MPA Parcel/Lot 6) The Lessee shall maintain a set of books, accounts and records covering the operations that are subject to this Agreement, said books, accounts and records to be of the same type as those customarily used in these types of operations in accordance with accepted accounting practices and standards for such period of time as is provided herein. The Lessor shall be permitted to examine and audit, during ordinary business hours, by or through its officers, employees or representatives of the Lessor, such records and books of account, provided that the Lessee shall not be required to maintain such records and books of account pertaining to operations within the demised premises occurring during any annual period for more than three (3) years after the end of each annual period. Section 4. IMPROVEMENTS. No permanent structures or buildings will be allowed in the lease 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 B, submitted by Lessee. Any changes or additions to those improvements, as described in Exhibit B, 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 -I-395 as necessary. All improvements and any refuse, contamination or other diminution of the property, occurring during the THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI's lease shall be removed or rectified as requested by FDOT. A complete and final total of construction costs of the improvements shall be provided within six months of the completion of such work. Such final total shall be regarded as the capital investment to be amortized. All improvements within the leased area are to be completed within six (6) months of the execution of this lease. Lessor reserves the right to inspect, at any time, during the construction of said improvements and require changes and modifications at Lessor's 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 agreement is executed. Portable or temporary advertising signs are prohibited. Page Three Item/Segment No. 2515031 FAP No. 1-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6002(MPA ParceVLot 6) AN ADDENDUM made this day of , 2003, TO LEASE AGREEMENT, dated day of 2003. All other terms and conditions of the Lease Agreement remain unchanged and with this confirmed and ratified by Lessor and Lessee. LESSOR: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: District Six Secretary LESSEE: THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: TITLE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION AIRSPACE AGREEMENT ITEM/SEGMENT NO.: 2515031 575-060.32 REGNTOF WAY 05/03 Pau S of 7 MANAGING DISTRICT: Six F.A.P. NO.: 1-395-1(85)3 STATE ROAD NO.: 1-395 COUNTY.: Miami -Dade PARCEL NO.: 6008 (MPA Parcel/Lot 7) THIS AGREEMENT, made this day of , between THE DEPARTMENT OF OFF- at STREET PARKING OF THE CITY OF MIAMI a/k/a MIAMI PARKING AUTHORITY (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, Tying 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 Highway 395 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: public parking lot 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 (5) years beginning with the date of this Agreement. One renewal of this Agreement may be made for a single five (5) year term . However, except for a public purpose conveyance, such renewal may not exceed five years. Nothing herein shall be construed to in any way grant an interest In the property Tying below said airspace. 575.060.32 RIGHT OF WAY 05/03 Pace 2 of ; 3. Rent a. Lessee shall pay to the Department as rent each 0 month 0 quarter Q year on or before the first day of each rent payment period, See Addendum 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 shall 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 biannually 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, Room 6116, 1000 NW 111th Avenue, 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: This is a public purpose lease. The use of the space is a public parkinglot. The lot must be available to the public at all times. Any revenues collected may not be directed to area businesses. 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 "B" 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 "B" 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 actioh which is reasonable and necessary to conduct an environmental assessment or to abate an environmental hazard. 575.060-a2 fliGHTOF WAY 05103 Pace 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 wilt 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, shalt 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 Tess than One million dollars ($ 1.000.000.00 ) for property damage, or a combined coverage of not less than Two million dollars ($ 2.000.0nn on ) 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 WAN OSO3 Page A 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 Lessee in a manner prescribed by the Department at no cost to the Department or the FHWA. 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 and 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 1964 (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. 575.060-32 RIGHT OF WAY 05103 Pace 5 al 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 same 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 Florida, county or local governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or 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 herein, 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. h. 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 property. 1. This Agreement shall be governed by the laws of the State of Florida, and any applicable laws of the United States of America. f. 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. By: Name: Title: Attest: Name: Title: 575.060-32 RIGHT OF WAY 05103 PAGE 6 0l 7 STATE OF FLORIDA The Department of Off -Street Parking DEPARTMENT OF TRANSPORTATION LESSEE (Company Name, if applicable) (Seal) By: Name: Attest: Name/Title: District Secretary John Martinez Legal Review: District Counsel Name: D. Michael Schloss ADDENDUM TO LEASE AGREEMENT Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. 1-395 County Miami -Dade Parcel No. 6008(MPA Parcel/Lot 7) THIS AGREEMENT SHALL SERVE AS AN ADDENDUM to that certain Airspace Agreement between THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI a/k/a MIAMI PARKING AUTHORITY and THE STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT) dated the day of, 2003. 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 (b) of said Agreement: Section 3. RENT. It is mutually agreed upon by both parties that the Lessee shall pay the Lessor an annual rental of $ 1.00 the first payment thereof being due and payable on or before and on or before the anniversary date of each succeeding year thereafter until such time as the actual construction costs are fully amortized. All revenues collected from the lot will be applied first to the costs of operation and maintenance of the lot including appropriate administrative overhead, not to exceed fifteen percent (15%) of gross revenues, and the remainder to amortization of the costs attributable to the construction of the lot. After such time as the capital investment is fully amortized, all further revenue above the ongoing costs of operation and maintenance of the parking lot will be distributed on the following basis: (1) The Lessee will retain one-half (1/2) of all excess revenues after operational and maintenance, including administrative overhead, have been deducted. (2) The Lessor will be paid one-half (1/2) of all excess revenues after operational expenses and maintenance, including administrative overhead, have been deducted. Payment of excess revenues shall be made quarterly on or before the 20th day of the month following the quarter in which such revenues are received. Each quarterly payment shall be accompanied by a sworn statement, which shall state the total amount of revenues for the period covered and the computation of the Lessor's portion. Such sworn statement shall itemize and allocate all expenditure. The Lessee shall pay the Lessor's portion of the excess revenues and submit all revenue reports required by this arrangement to the following stated address: Property Management Administrator, R/W Administration Florida Department of Transportation, Room 6118 1000 NW 111`h Avenue, Miami, Florida 33172 Page Two Item/Segment No. 2515031 FAP No. I-395-1(85)3 SR No. I-395 County Miami -Dade Parcel No. 6008(MPA Parcel/Lot 7) The Lessee shall maintain a set of books, accounts and records covering the operations that are subject to this Agreement, said books, accounts and records to be of the same type as those customarily used in these types of operations in accordance with accepted accounting practices and standards for such period of time as is provided herein. The Lessor shall be permitted to examine and audit, during ordinary business hours, by or through its officers, employees or representatives of the Lessor, such records and books of account, provided that the Lessee shall not be required to maintain such records and books of account pertaining to operations within the demised premises occurring during any annual period for more than three (3) years after the end of each annual period. Section 4. IMPROVEMENTS. No permanent structures or buildings will be allowed in the lease 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 B, submitted by Lessee. Any changes or additions to those improvements, as described in Exhibit B, 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 I-395 as necessary. All improvements and any refuse, contamination or other. diminution of the property, occurring during the THE DEPARTMENT OF OH -STREET PARKING OF THE CITY OF MIAMI's lease shall be removed or rectified as requested by FDOT. A complete and final total of construction costs of the improvements shall be provided within six months of the completion of such work. Such final total shall be regarded as the capital investment to be amortized. All improvements within the leased area are to be completed within six (6) months of the execution of this lease. Lessor reserves the right to inspect, at any time, during the construction of said improvements and require changes and modifications at Lessor's 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 agreement is executed. Portable or temporary advertising signs are prohibited. Page Three Item/Segment No. 2515031 FAP No. 1-395-1(85)3 SR No. [-395 County Miami -Dade Parcel No. 6008(MPA Parcel/Lot 7) AN ADDENDUM made this day of , 2003, TO LEASE AGREEMENT, dated day of , 2003. All other terms and conditions of the Lease Agreement remain unchanged and with this confirmed and ratified by Lessor and Lessee. LESSOR: STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: District Six Secretary LESSEE: THE DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: TITLE