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HomeMy WebLinkAboutExhibitThis Instrument Prepared By: Frank Votra Recurring Revenue Section Bureau of Public Land Administration 3900 Commonwealth Boulevard Mail Station No. 125 Tallahassee, Florida 32399 BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA MODIFIED SOVEREIGNTY SUBMERGED LANDS LEASE NO. 2 TO CORRECT THE LEGAL DESCRIPTION No. 130023806 PA No. 13-0186357-001 THIS LEASE ("Lease") is hereby issued by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, (hereinafter referred to as thq "Lessor"). WHEREAS, the Lessor and the City of Miami (hereinafter "Lessee"), (hereinafter the "Parties") entered into a Sovereignty Submerged Lands Lease dated Sanuary 1, 2002, and recorded in Official Records Book 20386, Page 3666, Public Records of Miami -Dade County,`Florida; and WHEREAS, the Lessor and Lessee subsequently entered into a Modified Sovereignty Submerged Lands Lease ("Modified Lease") To Reconfigure Docks dated January 27, 2003 (and expiring November 20, 2007), and recorded in Official Records Book 21580, Page 4533, Public Records of Miami -Dade County, Florida, which erroneously listed the wrong Township and Range in the recital section of said Modified Lease; and WHEREAS, the Lessor and Lessee agree to make such amendments to the Lease and Modified Lease as described below; and WITNESSETH: That for and in consideration of the faithful and timely performance of and compliance with all terms and conditions stated herein, the Lessor does hereby lease to Lessee, the sovereign lands as described in the preceding Modified Lease shall be amended and described as follows: A parcel of sovereign submerged land in Section 37, ' Township 54 South, Range 41 East, in the Miami River, Miami -Dade County, containing 39,000 square feet, more or less, as is more particularly described and shown on Attachment A, dated November 20, 1997. TO HAVE THE USE OF the hereinabove described premises from November 21, 2007, the effective date of this Lease, through December 31, 2012, the expiration date of this Lease. The terms and conditions on and for which this Lease is granted are as follows: 1. USE OF PROPERTY: The Lessee is hereby authorized to construct and operate a twenty-one (21 1 slip temporary public docking facility exclusively to be used for the temporary mooring of recreational vessels, with one slip allotted for a law enforcement vessel and another exclusively for water taxis in conjunction with an upland public park, without fueling facilities, with a sewage pumpout facility if it meets the regulatory requirements of the Department of Environmental Protection or local authority, whichever entity applies the more stringent criteria, and without liveaboards as defined in Paragraph 24, as shown and conditioned in Attachment A, and the Department of Environmental Protection, Environmental Resource Permit No. 13-0186357-001, commencing October 18, 2007 incorporated herein and made a part of this Lease by reference. The construction of the proposed structures depicted on Page 10 of Attachment A of this Lease shall be completed no later than October 18, 2012. The failure to complete the construction of all authorized structures within this time period shall constitute a material breach of this 4 Lease causing this Lease to automatically terminate upon the expiration of the initial term or first 5 years, whichever is sooner, without any right of renewal. All of the foregoing subject to the remaining conditions of this Lease. t [02/29] 2. AGREEMENT TO EXTENT OF' USE: This Lease is given to the Lessee to use or occupy the leased premises only for those activities specified herein and as conditioned by the Department of Environmental Protection, Environmental Resource Permit. The Lessee shall not change or add to the approved use of the leased premises as defined herein (e.g., from commercial to multi -family residential, from temporary mooring to rental of wetslips, from rental of wetslips to contractual agreement with third party for docking of cruise ships, from rental recreational pleasure craft to rental or temporary mooring of charter/tour boats, from loading/offloading commercial to rental of wetslips, etc.), shall not change activities in any manner that may have an environmental impact that was not considered in the original authorization or regulatory permit, or shall not change the type of use of the riparian uplands without first obtaining a regulatory permit/modified permit, if applicable, and the Lessor's written authorization in the form of a modified Lease, the payment of additional fees, if applicable, and, if applicable, the removal of any structures which may no longer qualify for authorization under the modified Lease. 3. PROPERTY RIGHTS: The Lessee shall make no claim of title or interest to said lands hereinbefore described by reason of the occupancy or use thereof, and all title and interest to said land hereinbefore described is vested in the Lessor. The Lessee is prohibited from including, or making any claim that purports to include, said lands described or the Lessee's leasehold interest in said lands into any form of private ownership, including but not limited to any form of condominium or cooperative ownership. The Lessee is further prohibited from making any claim, including any advertisement, that said land, or the use thereof, may be purchased, sold, or re -sold. 4. INTEREST IN RIPARIAN UPLAND PROPERTY: During the term of this Lease, the Lessee shall maintain a leasehold or fee simple title interest in the riparian upland property and if such interest is terminated, the Lease may be terminated at the option of the Lessor. Prior to sale and/or termination of the Lessee's leasehold or fee simple title interest in the upland property, Lessee shall and all its terms and conditions and shall complete and execute any documents required by the Lessor to effect an assignment of this Lease, if consented to by the Lessor. Failure to do so will not relieve the Lessee from responsibility for full compliance with the terms and conditions of this Lease which include, but are not limited to, payment of all fees and/or penalty assessments incurred prior to such act. 5. ASSIGNMENT OF LEASE: This Lease shall not be assigned or otherwise transferred without prior written consent of the Lessor or its duly authorized agent. Such assignment or other transfer shall be subject to the terms, conditions and provisions of management standards and applicable laws, rules and regulations in effect at that time. Any assignment or other transfer without prior written consent of the Lessor shall be null and void and without legal effect. 6. INDEMNIFICATION/INVESTIGATION OF ALL CLAIMS: The Lessee shall investigate all claims of every nature at its expense. Each party is responsible for all personal injury and property damage attributable to the negligent acts or omissions of that party and the officers, employees and agents thereof. Nothing herein shall be construed as an indemnity or a waiver of sovereign immunity enjoyed by any party hereto, as provided in Section 768.28, Florida Statutes, as amended from time to time, or any other law providing limitations on claims. 7. VENUE: Lessee waives venue as to any litigation arising from matters relating to this Lease and any such litigation between Lessor and Lessee shall be initiated and maintained only in Leon County, Florida. 8. NOTICES/COMPLIANCE/TERMINATION: All notices required to be given to the Lessee by this Lease or applicable law or administrative rules shall be sufficient if sent by US Mail to the following addresses and contacts and shall remain until changed to such other places or contact persons as Lessee may designate from time to time by notice to Lessor. The Lessee may notify the Lessor by certified mail of any change to these addresses at least ten (10) day before the change is effective. City Manager City of Miami 444 S.W. 2" Avenue 10th Floor Miami, Florida 33130 City Attorney City of Miami 444 S.W. 2" Avenue 9th Floor Miami, Florida 33130 Director, Public Facilities City of Mitni 444 S.W. 2" Avenue 3th Floor Miami, Florida 33130 9. TAXES AND ASSESSMENTS: The f,essee shall assume all responsibility for liabilities that accrue to the subject property or to the improvements thereon, including any and all drainage or special assessments or taxes of every ldnd and description which are now or rriay be hereafter lawfully assessed, and levied against the subject property during the effective period of this Lease. ' 10. NUISANCES OR ILLEGAL OPERATIONS: The Lessee shall not permit the leased premises or any part thereof to be used or occupied for any purPose or business other than herein specified unless such proposed use and occupancy are consented to by the Lessor and the Lease is modified accordingly, nor shall, Lessee knowingly permit or suffer any nuisances or illegal operations of any kind on the leased premises. • 11. MAINTENANCE OF' FACILITY/RIGHT TO INSPECT: The Lessee shall maintain the leased premises in good condition, keeping the structures i and equipment located thereon in a good state of repair in the interests of public health, safety and welfare. No dpck or pier shall be constructed in any manner that would -cause harm to wildlife. The leased premises shall be subject to inspection by the Lessor or its designated agent. at any reasonable time. 12. NON-DISCRIMINATION: The Lessee shall not discriminate against any individual becaUse of that individual's race, color, religion, sex, national origin, age, handicap, or marital status with respect to any activity occurring within the area subject to this Lease or upon lands adjacent to and used as an adjunct of the leased area. During the lease term, the Lessee shall post and thaintain the placard furnished to the Lessee by the Lessor in a prominent and visible location on the leased premises or adjacent business office of the Lessee. It shall be the responsibility of the Lessee to post the placard in a manner which will provide protection from the elements, and, in the event that said placard becomes illegible at any time during the term of this Lease (including any extensions thereof), to notify the Lessor in writing, so that a replacement may be provided. 13. ENFORCEMENT OF PROVISIONS: No failure, or successive failures, on the part of the Lessor to enforce any provision, nor any waiver or successive waivers on its part of any provision herein, shall operate as a discharge thereof or render the same inoperative cir impair the right of the Lessor to enforce the same upon any renewal thereof or in the event of subsequent breach or breaches, 14. PERMISSION GRANTED: Upon expiration or cancellation of this Lease all permission granted hereunder shall cease and terminate. 15. RENEWAL PROVISIONS: Renewdl of this Lease shall be at the option of the Lessee. Lessee shall have the right to renew this Lease for two (2) periods of five (5) years each, by giving written notice to Lessor no sooner than 120 days and no later than sixty (60) da's prior to the expiration date of the applicable Lease term. The Lessee's right to renew is contingent upon the Lessee being in full compliance with the terms and conditions of this Lease and the terms, conditions and provisions of management standards and applicable laws, rules and regulations in effect at that time. The term of any renewal granted by the Lessor shall commence on the day following the expiration of the previous lease term, If the Lessee fails to timely apply for a renewal, or in the event the Lessor does not grant a renewal, the Lessee shall vacate the leased premises and remove all structures and equipment occupying and erected thereon at its expense. The obligation to remove all structures authorized herein upon termination of this Lease shall constitute an affirmative covenant upon the riparian upland property more specifically described in Attachment B, which shall run with the title to said riparian upland property, and shall be binding upon Lessee and Lessee's successors in title or successors in interest. 16. REMOVAL OF STRUCTURES/AlplINISTRATIVE FINES: If the Lessee does not remove said structures and equipment occupying and erected upon the leased premises after expiration or cancellation of this Lease, such structures and equipment will be deem?d forfeited to the Lessor, and the Lessor may authorize removal and may sell such forfeited structures and equipment after ten (10) days written notice by certified mail addressed to the Lessee at the address specified in Paragraph 8 or at such address on record as provided to the Lessor by the Lessee. However, such remedy shall be in addition to all other remedies available to the Lessor under applicable laws, rules and regulations including the right to compel removal of all structures and the right to impose administrative fines. II 17. REMOVAL COSTS/LIEN ON RIPARIAN UPLAND PROPERTY: Any costs incurred by the Lessor in removal of any structures and equipment icontructed or maintained on state lands shall be paid by Lessee and any unpaid costs and expenses shall constitute a lien upon the interest of the Lessee in its riparian upland property enforceable in summary proceedings as provided by lawi , . 18, RECORDATION OF LEASE: The Lessee, at its own expense, shall record this fully. executed Lease in its entirety in the public records of the county within which the lease site is located within fourteen (14) days after receipt, and shall provide to the Lesso4 within ten (10) days following the recordatiop a copy of the recorded Lease in its entirety which contains the 0.1t. Book and pages at which the Lease is recorded. 1 . . 19. RIPARIAN RIGHTS/FINAL ADJIUDICATION: In the event that any part of any structure authorized hereunder is determined by a final adjudication issued by a court of competent jurisdiction to encroach on or interfere with adjacent riparian rights, Lessee a rees to either obtain written consent for the offending structure from the affected riparian owner or to remove the interference or encroachment within 60 days from the date of the adjudication. Failure to comply with this paragraph shall constitute a material breach of this lease agreement and shall be grounds for immediate termination of this lease agreement at the option of the Lessor. 20. AMENDMENTS/MODIFICATIONS: This Lease is the entire and only agreement between the parties. Its provisions are not severable. Any amendment or modification to this Lease must be in writing, must be abcepted, acknowledged and executed by the Lessee and Lessor, and must comply with the rules and statutes in existence at the time of the execution of the modification or amendment. Notwithstanding the provisions of this paragraph, if mooring is authorized by this Lease, the Lessee may install boatlifts within theleased premises without formal modification of the Lease provided that (a) the Lessee obtains any state or local regulatory permit that may be required; and (b) the location or size of the lift does not increase the mooring capacity of the facility. The Lessee's City Manager shall be authorized to make non -substantive amendments and to execute future lease renewals providing that these lease renewals do not contain material amendments to the terms and conditions of the Lease. 21. ADVERTISEMENT/SIGNS/NON-WATER-DEPENDENT ACTIVITIES/ADDITIONAL ACTIVITIES/MINOR STRUCTURAL REPAIRS: No permanent or temporary signs directed to the boating public advertising the sale of alcoholic beverages shall be erected or placed within the leased area. No restaurant or dining activities are to occur within the leased area. The Lessee shall ensure that no permanent, temporary or floating structures, fences, docks, pilings or any structures whose use is not water -dependent shall be erected or conducted over sovereignty submerged lands without prior written consent from the Lessor. No additional structures and/or activities including dredging, relocation/realignment or major repairs or renovations to authorized struct-ures, shall be erected or conducted on or over sovereignty, submerged lands without prior written consent from the Lessor. Unless specifically authorized in writing by the Lessor, such activities or structures shall be considered unauthorized and a violation of Chapter 253, Florida Statutes, and shall subject the Lessee to administrative fines under Chapter 18-14, Florida Administrative Code. This condition does not apply to minor structural repairs required to maintain the authorized structures in a good state of repair in the interests of public health, safety or welfare; provided, however, that such activities shall not exceed the activities authorized by this agreement. 22. ACOE AUTHORIZATION: Prior to commencement of construction and/or activities authorized herein, the Lessee shall obtain the U.S. Army CorPs of Engineers (ACOE) permit if it is required by the ACOE. Any modifications to the construction and/or activities authorized herein that may be required by the ACOE shall require consideration by and the prior written approval of the Lessor prior to the commencement of construction and/or any activities on sovereign, submerged lands. 23. COMPLIANCE WITH FLORIDA LAWS: On or in conjunction with the use of the leased premises, the Lessee shall at all times comply with all Florida Statutes and all administrative rules promulgated thereunder. Any unlawful activity which occurs on the leased premises or in conjunction with the use of the leased premises shall be grounds for the termination of this Lease by the Lessor. 24. LIVEABOARDS: The term "liveaboard" is defined as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. If liveaboards are authorized by paragraph one (1) of this Lease, in no event shall such "liveaboard" status exceed six (6) months within any twelve (12) month period, nor shall any such vessel constitute a legal or primary residence. 25. GAMBLING VESSELS: During the term of this Lease and any renewals, extensions, modifications or assignments thereof, Lessee shall prohibit the operation of or entry onto the leased premises of gambling cruise ships, or vessels that are used principally for the purpose of gambling, when these vessels are engaged in "cruises to nowhere," where the ships leave and return to the State of Florida without an intervening stop within another state or foreign country or waters within the jurisdiction of another state or foreign country, and any watercraft used to carry passengers to and from such gambling cruise ships. 26. SPECIAL LEASE CONDITIONS: A. Should a field survey acceptable to Lessor be required or obtained after the effective date of this Lease, the annual lease fees due hereunder shall be adjusted to reflect the increase or decrease in the total preempted area shown by the survey. Any such adjustment shall be effective from the date of the acceptable survey and shall be prospective only. No reimbursement or credit shall be given to Lessee by Lessor for overages, and no charge shall be imposed by Lessor for shortages unless the error resulted from inaccurate information supplied by the Lessee. B. Should the Lessee wish to change the use of the docking facility or any portion of the riparian upland use then the docking facility shall be subject to the applicable rules of the Lessor in effect at that time and the Lessee shall apply directly to the State of Florida Department of Environmental Protection, Southeast District office for applicable lease modifications. C. Only temporary day mooring shall be allowed at the facility. Overnight or permanent mooring is prohibited. D. Slip #14, as designated on Attachment A shall be used solely for the mooring of law enforcement vessels. The Lessee shall install a sign at the slip designated it "Law Enforcement Only." E. Only one slip at the facility, Slip #21, as designated on Attachment A will be used for water taxi access. The Lessee shall install a sign at the slip designating it "Water taxi only." F. Except as provided in subparagraphs B, D and E above, the docks shall be used solely for public recreational, non-commercial activities consistent with the historic, grandfathered operation as a public docking facility used in conjunction with a public upland park. WITNESSES: BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA Original Signature (SEAL) BY: Print/Type Name of Witness Original Signature Print/Type Name of Witness Jeffery M. Gentry, Operations and Management Consultant Manager, Bureau of Public Land Administration, Division of State Lands, Department ofEnvironrnental Protection, as agent for and on behalf Of the Board ofTrustees of the Internal Improvemerit Trust Fund of the State of Florida STATE OF FLORIDA "LESSOR" COUNTY OF LEON The foregoing instrument was acknowledged before me this day of 20 , by Jeffery M. Gentry, Operations and; Management Consultant Manager, Bureau of Public Land Administration, Division of State Lands, Department of Environmental Protection, as agent for and on behalf of the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. He is personally known to me. APPROVED AS TO FORM AND LEGALITY: DEP Attorney Notary Public, State of Florida Printed, Typed or Stamped Name My Commission Expires: Commission/Serial No. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida (Seal) BY: Priscilla A. Thompson Pedro G. Hernandez City Clerk City Manager APPROVED AS TO INSURANCE , APPROVED AS TO FORM AND CORRECTNESS: REQUIREMENTS; LeeAnn Brehm Jorge L. Fernandez Director of Risk Management City Attorney STATE OF FLORIDA "LESSEE" COUNTY OF MIAMI-DADE The forgoing instrument was acknowledged before me this day of 20 , by Pedro G. Hernandez as City Manager, for and on behalf of the City of Miami, Florida. He is personally known t me or who has produced as identification. My Commission Expires: Notary Signature Notary Public, State of Florida Printed, Typed or Stamped Name Commission/Serial No.