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Home My WebLink AboutexhibitAExhibit "A" OCCUPANCY AGREEMENT THIS OCCUPANCY AGREEMENT ("Agreement") is made and entered into this day of , 2005, by and between ERS Properties, Inc., a Florida for -profit corporation, and Sigmund O. Schickman, an individual as condemnees ("Condemnees"), and the City of Miami, a municipal corporation of the State of Florida, as condemnor (" .iiy") (collectively, the "Parties"). DRAFT W-4TNESSETH: WHEREAS, pursuant to its authority under Chapters 73 and 166, Florida Statutes, the City filed a petition in eminent domain to acquire the real property described in Exhibit "A" attached hereto ("Properties"); and WHEREAS, pursuant to its authority under Chapter 74, Florida Statutes, the City petitioned the Circuit Court of the Eleventh judicial Circuit in case nos. 04-26596, 04-26598, and 04-26600 for entry of an order of taking to acquire title to the Properties in advance of final judgment; and WHEREAS, on May 16, 2005, as a result of mediation, the Parties agreed to a Memorandum of Settlement to acquire title to the Properties in connection with development of Little Haiti Park, attached hereto as Exhibit "B"; and WHEREAS, the period of extended possession permits the Condemnee to continue operating and conducting those activities in the same manner as it did prior to entry of the Order of Taking, subject to the terms of this Agreement; and WHEREAS, the City Commission, by Resolution No. adopted on , 2005, approved and authorized the City Manager to execute this Agreement, under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the terms dictated by the Memorandum of Settlement, the City and the Condemnee hereby agree as follows: 1. The City hereby grants to the Condemnee the right to occupy the Property from June 9, 2005, the date of approval by the City Commission, through and including November 15, 2005 at 5:00 p.m. ("Occupancy Period"). The Occupancy Period may be not be extended. No rent shall be due and payable from the Condemnee during the Occupancy Period. 2. The Condemnee shall: (i) vacate the Property no later than November 15, 2005 at 5:00 p.m., unless the Occupancy Period; (ii) leave the Property in the same condition (subject to ordinary wear) in which it existed on the date of approval by the City Commission; and (iii) remove -1- all personal property, fixtures, and special purpose systems not acquired by the City. If the Condemnee fails to remove all personal property, fixtures, and special purpose systems by the conclusion of the Occupancy Period, the City shall not be responsible for the loss or destruction of such personal property, fixtures, and special purpose systems. 3. The Condemnee shall maintain, at its sole cost and expense, public liability insurance of at least $1,000,000 general aggregate limit and hazard insurance coverage for the duration of the Occupancy Period. 4. The Condemnee shall provide the City, immediately upon entry of this Agreement, —with a Certificate of Insurance naming the City as an additional insured, and evidencing the public liability insurance coverage and hazard insurance coverage as required in Paragraph 3 above. Such Certificate shall provide for a 30-day written notice to the City in the event of cancellation or material change of said coverage. The insurance policy shall be written on an occurrence basis and shall include the broad form comprehensive general liability endorsement or equivalent. 5. The Condemnee shall occupy the Property in "As Is" condition and at its own risk. The "As Is" condition shall be ascertained by inspection of the Property conducted by the City, before the execution of the Agreement. The Condemnee hereby agrees not to conduct any demolition or renovation activities on the Property during the Occupancy Period. The Condemnee shall be solely responsible for maintenance and repair of the Property during the Occupancy Period. 6. The Condemnee may not transfer, convey, substitute, or assign any rights under this Agreement or sublease all or any part of the Property. 7. The Condemnee hereby agrees to release, indemnify and hold harmless the City, its officers, employees, representatives, agents, successors and assigns, from any and all liability, claims, demands, actions, judgments, damages, costs and expenses of any nature whatsoever in any way arising from the Property or out of the Condemnee's occupancy of the Property during the Occupancy Period including, but not limited to, any and all claims made by third parties. This agreement, release, indemnification and hold -harmless does not apply to any liabilities, claims;, demands, actions, judgments, damages, costs and expenses of any nature whatsoever arising from the willful acts or gross negligence the City, its officers, employees, representatives, agents, successors and assigns with respect to the Property, if any were to arise, including, but not limited to, any and all claims made by third parties. Notwithstanding the foregoing, the Condemnee hereby agrees to occupy the Property in "As Is" condition at its own risk, and hereby acknowledges that the City shall make no repairs to the Property during the Occupancy Period. This paragraph shall survive the termination of the Occupancy Period. 8. The City and/or its consultants may inspect the interior and exterior of the Property upon reasonable notice to Condemnee at all reasonable hours to ensure compliance with this Agreement. The City and/or its consultants, upon reasonable notice and without substantial interference to the Condemnee, may conduct inspections that may include, but are not limited to, -2- surveys, soil borings, percolation, engineering studies, environmental tests and studies, and other tests that the City and/or its consultants consider necessary for the future development of the Property, provided that such inspections and testing do not materially impact the Property or materially impact Condemnee's use and enjoyment of the Property. 9. This Occupancy Agreement shall not create any additional rights or interests in the Property other than those specified herein. 10. This Agreement shall not be assigned by the Condemnee, in whole or in part, without the prior written consent of the City, which may be withheld or conditioned in the City's sole discretion, 11. All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. To City: Laura Bilberry, Acting Director Department of Economic Development 444 S.W. 2"d Avenue, 3rd Floor Miami, Florida 33130 To Counsel: Jorge L. Fernandez, City Attorney City of Miami 444 S.W. 2"d Avenue, Suite 945 Miami, Florida 33130 To Condemnee: ERS Properties, Inc. and Sigmund O. Schickman c/o Mark A. Tobin, Esq. Patrick T. DiPietro, Esq. 203 S.W. 13`h St. Miami, FL 33130 Mitchell J. Burnstein Weiss Serota Helfman Pastoriza Guedes Cole & Boniske, P.A. 3107 Stirling Road, Suite 300 Ft. Lauderdale, Fl 33312 12. The Condemnee understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. 3• DR AFT 13. This instrument and its attachments constitute the sole and only agreement of the Parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 14. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement on this day of , 2005. ATTEST: ERS Properties, Inc., a for -profit corporation By: By: Print Name: Print Name: Sigmund O. Schickman Title: Corporate Secretary Title: President Individually, By: Print Name: Sigmund O. Schickman CITY OF MIAMI, a municipal ATTEST: corporation By: By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager Approved As To Form And Approved As To Insurance Correctness: Requirements: By: By: Jorge L. Fernandez Dania Carrillo City Attorney Risk Management DR No EXHIBIT "A" LEGAL DESCRIPTION OF PARCEL 67 Lots 10,11 & 12 of Block 12, Second Corrected Plat of Pierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 212 NE 59th Terrace Miami, F1 33138 LEGAL DESCRIPTION OF PARCEL 75 Lot 17 of Block 12, Second Corrected Plat of Pierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 211 NE 59th Street Miami, F133138 LEGAL DESCRIPTION OF PARCEL 76 Lot 18 of Block 12, Second Corrected Plat of Pierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 215 NE 59th Street Miami, Fl 33138 5