HomeMy WebLinkAboutExhibit 3LEASE AGREEMENT
BETWEEN
THE CITY OF MIAMI
AND
MIAMI-DADE COUNTY
FOR THE USE OF THE FOLLOWING DESCRIBED PREMISES
1. Allapattah Library, 1799 NW 35th Street, Miami.
2. Coconut Grove Library, 2875 McFarlane Road, Miami.
3. Culmer Overtown Library, 350 NW 13th Street, Miami.
4. Edison Center Library, 531 NW 62nd Street, Miami.
5. Lemon City Library, 430 NE 61" Street, Miami.
6. Little River Library, 160 NE 79th Street, Miami.
7. Shenandoah Library, 2111 SW 19th Street, Miami.
8. West Flagler Library, 5050 West Flagler Street, Miami.
TABLE OF CONTENTS
LEASE AGREEMENT 1
1. DESCRIPTION OF PROPERTIES. 5
2. PURPOSE. 5
3. TERM 6
4. OPTION TO EXTEND.• 6
5. HOLDOVER. 7
6. CONTINUOUS DUTY TO OPERATE 7
7. RENT. 7
8. UTILITIES. 8
9. TAXES OR ASSESSMENTS. 8
10. RIGHT TO DISCONTINUE BY COUNTY 8
11. QUIET ENJOYMENT 9
12. DEFAULT 9
13. RIGHT TO CANCEL BY CITY l 1
14. EMINENT DOMAIN 11
15. LIBRARY ADVISORY BOARD (Deleted) 12
16. CONDITION AND MAINTENANCE OF THE PROPERTIES. 12
17. ALTERATIONS, ADDITIONS, REPAIRS OR REPLACEMENTS. 13
18. OWNERSHIP OF IMPROVEMENTS. 13
19. VIOLATIONS, LIENS AND SECURITY INTERESTS 14
20. CITY'S RIGHT OF ENTRY 15
21. SURRENDER OF PROPERTIES 15
22. INDEMNIFICATION. 15
23. INSURANCE. 15
24. DESTRUCTION TO PROPERTIES. 18
25. OPTION TO TERMINATE DUE TO CASUALTY. 18
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26. NO LIABILITY FOR PERSONAL PROPERTY. 19
27. SAFETY 19
28. NOTICES. 20
29. ADVERTISING. 20
30. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS 21
31. CONFLICT OF INTEREST 22
32. NON-DISCRIMINATION 22
33. ADA 22
34. AFFIRMATIVE ACTION. 22
35. MINORITY/WOMEN BUSINESS UTILIZATION 23
36. HAZARDOUS MATERIALS. 23
37. RADON GAS. 24
38. LITIGATION. 24
39. COURT COSTS AND ATTORNEY FEES. 25
40. WAIVER OF JURY TRIAL. 25
41. • NON -WAIVER OF DEFAULT. 25
42. TIME OF ESSENCE 25
43. FURTHER ACTS 26
44. AMENDMENTS AND MODIFICATIONS. 26
45. SEVERABILITY. 26
46. CAPTIONS. 26
47. INTERPRETATION 26
48. CONSTRUCTION OF AGREEMENT 27
49. COVENANTS BINDING. 27
50. ENTIRE AGREEMENT. 27
51. AUTHORITY 27
Exhibit
«A„ ..30
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LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter "Agreement") is made and
entered into this 1 day of lA I? , 2007, by and between The City of
Miami, a municipal corporation under the laws of the State of Florida, hereinafter called
the "City" and Miami -Dade County, a political subdivision of the State of Florida,
hereinafter called the "County," together the "Parties."
WITNESSETH:
WHEREAS, the City of Miami (the "City") is the owner of several parcels of
land ("Properties") legally described in Exhibit "A" on which several County -operated
libraries are located in the City of Miami; and
WHEREAS, under the terms of the Lease Agreement ("Agreement") entered
into between the City and County on November 1, 1971, the City agreed to lease ten (10)
properties to the County for use as libraries at a nominal rate of $1.00 annually to serve
the City and its residents and in exchange the County agreed to pay for the full cost of
operating and maintaining said properties as library facilities; and
WHEREAS, two (2) of the properties originally leased to the County and
located at 1 Biscayne Boulevard and 1400 NW 37th Avenue were discontinued as library
locations, the latter due to reconstruction plans for Grapeland Park ; and
WHEREAS, the City seeks to continue to lease and County agrees to lease
eight (8) city -owned Properties, which are located at 1799 NW 35`h Street (Allapattah
Library), 2875 McFarlane Road (Coconut Grove Library), 350 NW 13th Street (Culmer
Overtown Library), 531 NW 62nd Street (Edison Center Library), 430 NE 61 S` Street
(Lemon City Library), 160 NE 79th Street (Little River Library), 2111 SW 19th Street
(Shenandoah Library) and 5050 West Flagler Street (West Flagler Library) in Miami,
Florida for use as libraries; and
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NOW THEREFORE, in consideration of the Properties and mutual
covenants hereinafter contained to be observed and performed, the Parties do hereby
consent and agree as follows:
1. DESCRIPTION OF PROPERTIES.
The City hereby leases unto the County and the County hereby leases from the
City, the following eight (8) properties located in Miami, Florida, together with the
buildings, machinery and equipment thereto ("Properties"), the locations of which are
listed below and are attached hereto as Exhibits 1 through 8 inclusive.
1. Allapattah Library, 1799 NW 35`h Street, Miami.
2. Coconut Grove Library, 2875 McFarlane Road, Miami.
3. Culmer Overtown Library, 350 NW 13`h Street, Miami.
4. Edison Center Library, 531 NW 62°d Street, Miami.
5. Lemon City Library, 430 NE 615t Street, Miami.
6. Little River Library, 160 NE 79th Street, Miami.
7. Shenandoah Library, 2111 SW 19th Street, Miami.
8. West Flagler Library, 5050 West Flagler Street, Miami.
2. PURPOSE.
The Properties are to be used by the County solely as library facilities and for
other informationand educational purposes and for no other use whatsoever, with the
exception of allowing the facility to be used for electoral voting. Any use of the
Properties not authorized under this Agreement must receive the prior written consent of
the City Manager, which consent may be withheld or conditioned for any or no reason,
including, but not limited to, additional financial consideration. The Properties shall be
made available to the public on fair and reasonable terms without discrimination.
In the event that the County discontinues the use of any one or more of the
Properties as library facilities, then this Agreement, as it applies to the specific property
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or properties withdrawn from library use, shall terminate forthwith and said property or
properties shall immediately revert to the City. In case of the County's discontinuance of
one or more of the Properties, County must comply with the respective notice and library
substitution provisions described in Section 10 herein.
Any duly noticed discontinuance of County's use of one or more Properties
defined under Section 1 herein, shall not cause a termination of this Agreement as to the
remaining Properties listed in Section 1 herein or replacement Properties provided subject
to Section 10 herein. The City and County may mutually consent to add more library
properties to this Agreement upon amendment of said Agreement, with the express
authority and consent of the Parties and their respective City Manager and County Mayor
or his designee.
3. TERM.
The term of this Agreement shall be for a period of fifteen (15) years ("Term"),
beginning on the date that this Agreement is fully executed by the Parties (the "Effective
Date"). In the event the date of execution is not the first day of the month, the Effective
Date shall be adjusted to be the first day of the following month.
4. OPTION TO EXTEND.
In the event the City and the County mutually wish to extend this Agreement, this
Agreement may be extended for a maximum of three (3) additional five (5) year terms
(hereinafter the "Additional Terms"), beyond the initial fifteen (15) year term, subject to
the same terms and conditions of this Agreement. If the County desires to exercise its
option for an Additional Term, the County shall give the City written notice of its
intention to exercise the option a minimum of one hundred and eighty (180) days prior to
the expiration of the Agreement.
Upon receipt of the written notice, the City Manager, in his/her sole discretion,
shall either extend the Agreement or reject the Additional Term within sixty (60) days of
receipt of notice.
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Once an Additional Term is extended by the City Manager, the Term of the
Agreement shall include the newly extended Additional Term
5. HOLDOVER.
In the absence of any written agreement to the contrary, if the County should
remain in occupancy of the Properties after the expiration of the lease term, it shall so
remain as a tenant from month -to -month and the Rent shall be the same Rent as the last in
effect. All other provisions of this Agreement applicable to such tenancy shall remain in
full force and effect.
6. CONTINUOUS DUTY TO OPERATE.
Except where the Properties are rendered untenable by reason of fire or other
casualty, or are temporarily closed for City -approved remodeling, the County shall at all
times during this Agreement (i) occupy the Properties upon the Effective Date; (ii) shall
thereafter continuously conduct operations on the Properties in accordance with the terms
of this Agreement and shall at all times keep the Properties fully stocked with materials,
trade fixtures and furnishings necessary to operate the Properties; and (iii) keep the
Properties open to the public on a continual basis during the days and hours as are the
then current service model for libraries. The County shall have the obligation to fund all
materials, books, trade fixtures and furnishings necessary to operate the Properties as
libraries.
7. RENT.
The County shall pay annually to the City a nominal, annual Rental Fee of One
Dollar and Zero Cents ($1.00) ("Rental Fee") to occupy and use all the Properties listed in
Section 1 herein. Any reduction in the number of properties leased by County shall not
correspondingly reduce the annual Rental Fee.
The first annual Rental Fee payment to be made by the County shall be on or prior
to the Effective Date and on the first day of each Agreement Year thereafter. For
purposes of this Agreement, Agreement Year shall mean any period of time consisting of
twelve (12) consecutive calendar months commencing on the Effective Date and each
anniversary thereafter. Payments shall be made payable to the "City of Miami" and shall
be mailed to the "City of Miami, Finance Department, 444 S.W. 2"d Avenue, 6th Floor,
Miami, Florida 33130," Attention: Collections Department or at such other address as
may be designated from time to time.
8. UTILITIES.
The County shall pay for all utilities, including but not limited to, telephone,
electricity, fuel, gas, water, storm water fees, garbage and sewage disposal facilities used
by the County during its occupancy of the Properties, as well as all costs related to the
installation of any connections, lines and/or equipment necessary.
9. TAXES OR ASSESSMENTS.
The County represents that it is immune from taxation as a political subdivision of
the State of Florida. Notwithstanding same, in the event that the Properties become
subject to taxation, charges or assessments, the County shall pay before any fine, penalty,
interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments
levied against the Properties (collectively Assessments), its proportionate share of use of
the Properties and/or against personal property of any kind, owned by or placed in, upon
or about the Properties by the County, including, but not limited to, ad valorem taxes, fire
fees and parking surcharges. In the event the County appeals an Assessment, the County
shall immediately notify the City of its intention to appeal said Assessment and shall
furnish and keep in effect a surety bond of a responsible and substantial surety company
reasonably acceptable to the City Manager, or his/her designee, or other security
reasonably satisfactory to the City Manager, or his/her designee, in an amount sufficient
to pay one hundred percent of the contested Assessment with all interest on it and costs
and expenses, including reasonable attorneys' fees, to be incurred in connection with it.
10. RIGHT TO DISCONTINUE BY COUNTY.
The County shall have the option to discontinue the use of one or more of the
Properties upon providing six (6) months advance notice to the City, provided, however,
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that the discontinuance of the use of the buildings or properties for library purposes shall
be through official County Commission action. Furthermore, such discontinuance shall
not relieve the County of the obligation to continue library services within the City as
provided herein.
In the event of the County's exercise of such discontinuance provisions, the
County, although not obligated, will use its best effort to provide substitute facilities. In
such event, the County shall clearly state in its written notice, any temporary or
permanent arrangements which County has made to continue to provide library facilities
and replace any discontinued or displaced library locations with library services at
mutually agreed upon substitute locations, if any, at no further cost or expense to the City.
Upon the discontinuance and then subsequent vacation of one or more Properties, said
Properties shall immediately revert to the control and occupancy of the City.
11. QUIET ENJOYMENT.
The City hereby covenants and represents that at the time of the execution of these
presents, it is the sole owner in fee simple of the Properties herein above described and
that it has good and marketable title, and the full right to lease the same for the term
aforesaid.
The County, on payment of the rent herein provided and performance of its
obligations, hereunder, shall and may peacefully and quietly have, hold, and enjoy the
Properties for the term hereof or any extension or renewal thereof with all rights and
privileges and for the use herein provided.
12. DEFAULT.
The occurrence of any one or more of the following events is deemed an "Event of
Default":
(a) If the County defaults in the due and punctual payment of any installment
of any Rent when due and payable in accordance with this Agreement, and such default
continues for more than thirty (30) days after written notice that the sum is due;
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(b) If either party defaults in the due performance or observance of any covenant
or condition or provision under this Agreement, other than the payment of Rent, and such
default continues for more than thirty (30) days after written notice of the default from the
non -defaulting party, provided that if such default cannot be cured within thirty (30) days,
the defaulting party shall have a reasonable period of time (not to exceed one hundred and
eighty (180) days) to cure such default so long as the defaulting party commences the cure
within thirty (30) days and diligently prosecutes same to completion. If any Event of
Default occurs, the party not at fault shall have the right to terminate this Agreement upon
thirty (30) days written notice.
(c) The waiver (either expressed or implied by law) by either party of any default
of any term, condition or covenant herein contained shall not be a .waiver of any
subsequent default of the same or any other term, condition or covenant herein contained.
No waiver made by either party with respect to performance, or manner or time thereof, of
any obligation of the other party or any condition to its own obligation under this
Agreement shall be considered a waiver of any rights of the party making the waiver with
respect to the particular obligations of the other party, or conditions to its own obligation,
beyond those expressly waived, and to the extent thereof, or a waiver in regard to any
other rights of the party making the waiver or in regard to any obligation of the other party.
No remedy conferred upon or reserved to the City or the County shall be
considered exclusive of any other remedy, but shall be cumulative and shall be in addition
to every other remedy given under this Agreement or existing at law or in equity or by
statute; and every power and remedy given by this Agreement to the City or the County
may be exercised from time to time and as often as occasion may arise or as may be
deemed expedient by the City or the County. No delay or omission of City or County to
exercise any right or power arising from any default shall impair any right or power, nor
shall it be construed to be a waiver of any default or any acquiescence in it..
For the purpose of any of the provisions of this Agreement, neither the City
(including the City Manager) nor the County (including the County Manager), as the case
may be, shall be considered in breach of or in default in any of its obligations under this
Agreement in the event of unavoidable delay in the performance of any such obligations
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due to strikes, lockouts, acts of God, inability to obtain labor or materials, or to settle
insurance claims, due to governmental restrictions, enemy action, civil commotion, fire,
hurricane, flood, casualty, or other similar causes beyond the reasonable control of a party
(collectively "Unavoidable Delay"), but not including such party's insolvency of financial
condition, it being the purpose and intent of this Section that in the event of the
occurrence of any such Unavoidable Delay the time or times for the performance of the
covenants and provisions of this Agreement shall be extended for the period of
Unavoidable Delay; provided, however, that the party seeking the benefit of the
provisions of this Section shall, within thirty (30) days after such party shall have become
aware of such Unavoidable Delay, give written notice to the other party thereof of the
cause or causes thereof and the time anticipated to be delayed.
13.. RIGHT TO CANCEL BY CITY.
The City reserves the right to cancel, terminate and declare this Agreement or any
portion thereof, null and void, at its option, for any reason whatsoever relating to one or
more or to all of the Properties enumerated in Section 1 of this Agreement. Said right
shall be exercised by City Commission action only. Notice of the Commission's
cancellation or termination shall be given in writing to the County Manager, Stephen P.
Clark Center, 111 NW lst Street, Suite 2910, Miami, Florida 33128 and shall provide an
effective date of said cancellation of not less than six (6) months from the date of said
notice by the City to the County, unless an earlier date is mutually agreeable. In the
event that the City exercises the right to cancel, terminate and declare this Agreement null
and void or any portion thereof, the City, although not obligated, will nonetheless use
good faith efforts to provide the County a comparable building within which the County
may re -locate the libraries, provided same does not result in a cost to the City.
14. EMINENT DOMAIN.
In the event any one or more of the buildings and Properties is taken by eminent
domain, the City shall have the option of applying the funds received as a result of such
proceedings to the acquisition or construction of a comparable library facility in the same
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general area as the property taken. Such comparable library facility shall thereupon be
deemed a portion of the demised Properties as if specifically listed herein. If the City
does not exercise this option within one (1) year from the date said funds become
available, then and in that event, such funds shall be retained in full by the City.
15. INTENTIONALLY DELETED
16. CONDITION AND MAINTENANCE OF THE PROPERTIES.
The County accepts the Properties in their "as is" present condition and state of
repair, without any representation by or on behalf of the City, and agrees that the City
shall, under no circumstances, be liable for any latent, patent or other defects in the
Properties.
The County, at its sole cost and expense, agrees to maintain the interior and
exterior of the Properties, including but not limited to, areas used for ingress and egress,
in good order and repair at all times, and in attractive, clean, safe and sanitary conditions
during its use and occupancy of the Properties and shall cause no waste or injury thereto.
This shall include, but not be limited to, the parking areas, the plumbing and other pipes,
all components of the heating, air conditioning and ventilation systems, electrical
systems, telephone, gas, public utility systems and lines, landscaping, fencing, windows,
roof, paint and other elements of the structure or structures on the Properties. In the event
that any portion of the Properties becomes obsolete or worn out in use so that it can not
properly perform its function as intended, then the County shall replace the same at its
sole cost and expense.
The County shall be responsible for any and all costs associated with the
maintenance, repair and library operations at said Properties, including but not limited to
janitorial services and supplies, repair, maintenance, construction/rehabilitation costs,
utilities, all occupational and other licenses necessary for the library operations,
personnel, equipment, utilities, security and insurance costs incurred for its library
operations.
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17. ALTERATIONS, ADDITIONS, REPAIRS OR
REPLACEMENTS.
Except in the event of an emergency, the County shall not make any alterations,
additions, repairs or replacements required or permitted to be performed by County unless
and until the County shall have caused plans and specifications therefore to be prepared,
at County's sole expense, by an architect or other duly qualified professional and shall do
its best efforts to have obtained the approval of the City Manager or his/her designee,
within thirty (30) days of the County's request for same, which approval may be
conditioned or withheld for any or no reason whatsoever [if said alteration, repair or
replacement does not necessitate plans, than such turn -around of the City's approval will
be within (14) days]. In the event of an emergency, the County may reasonably proceed
to perform such emergency repair work and shall immediately notify the City of such
work.
The County shall be solely responsible for applying and acquiring all necessary
permits, including but not limited to, building permits. The County shall be responsible
for all costs associated with any alterations including, but not limited to design,
construction, installation, and permitting costs.
All alterations, additions, repairs or replacements must comply with all statutes,
laws, ordinances and regulations of the State of Florida, Miami -Dade County, the City of
Miami and any other agency that may have jurisdiction over the Properties as they
presently exist and as they may be amended hereafter. By the installation of any
alterations, additions, repairs or replacements, the City shall not be excluded from the
Properties. If the City at its option, exercises its right to perform any supplemental
alterations, additions, repairs or replacements, the City must request access to the
Properties from the County, which request shall not be unreasonably withheld.
18. OWNERSHIP OF IMPROVEMENTS.
As of the Effective Date and throughout the use period, title to the Properties and
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all improvements thereon shall be vested in the City. Furthermore, title to all alterations
made in or to the Properties, whether or not by or at the expense of County, shall, unless
otherwise provided by written agreement, immediately upon their completion, become the
property of the City and shall remain and be surrendered with the Properties.
19. VIOLATIONS, LIENS AND SECURITY INTERESTS.
The County, at its expense and with due diligence and dispatch, shall secure the
cancellation or discharge of or bond off same in the manner permitted by law, all notices
of violations arising from or otherwise in connection with County's improvements or
operations in the Properties which shall be issued by any public authority having or
asserting jurisdiction. The County shall promptly pay its contractors and material men for
all. work and labor done at County's request. Should any such lien be asserted or filed,
regardless of the validity of said liens or claims, County shall bond against or discharge
the same within fifteen (15) calendar days of the filing of said encumbrance. In the event
the County fails to remove or bond against said lien by paying the full amount claimed,
the County shall pay the City, upon demand, any amount paid out by the City, including
City's costs, expenses and reasonable attorneys' fees.
The County further agrees to hold the City harmless from and to indemnify the
City against any and all claims of any contractor, subcontractor, material man, laborer or
any other third person with whom the County has contracted or otherwise is found liable
for, in respect to the Properties. Nothing contained in this Agreement shall be deemed,
construed or interpreted to imply any consent or agreement on the part of the City to
subject the City's interest or estate to any liability under any mechanic's or other lien
asserted by any contractor, subcontractor, material man or supplier thereof against any
part of the Properties or any of the improvements thereon and each such contract shall
provide that the contractor must insert a statement in any subcontract or purchase order
that the contractor's contract so provides for waiver for lien and that the subcontractor,
material man and supplier agree to be bound by such provision.
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20. CITY'S RIGHT OF ENTRY.
The County shall permit the City and its agents, representatives, employees,
and/or designees of the City to enter into the Properties, based upon availability of the
same, at all reasonable times upon advance written notice for any reasonable purpose;
provided, however, that the City's rights under this Section shall not unreasonably
interfere with the operation of the Properties or the performance of the County's
obligations under this Agreement.
21. SURRENDER OF PROPERTIES.
Upon the expiration or earlier termination of the Agreement, or the discontinuance
of one or more properties for use as library facilities hereunder, the County will surrender
the respective Properties in good and a substantial state of repair, reasonable wear and
tear excepted, subject to the repair and maintenance obligations provided in Sections 16
and 17 herein. At the expiration of the lease, additional terms or at the discontinuance in
use of one or more of the Properties leased herein, all fixtures and keys relating to any or
all of the subject Property or Properties revert back to the City.
22. INDEMNIFICATION.
The City and the County do hereby agree to indemnify and hold harmless each
other to the extent and within the limitations of Section 768.28, Fla. Statutes, subject to
the provisions of that Statute whereby the City and the County shall not be held liable to
pay a personal injury or property damage claim or judgments by any one person which
exceeds the sum of $100,000 or any claim or judgments or portions thereof, which, when
totaled with all other occurrences, exceeds the sum of $200,000, from any and all
personal injury or property damage claims, liabilities, losses and causes of action which
may arise solely as a result of the respective negligence of the County or City.
23. INSURANCE.
County represents that it is self -insured and shall provide evidence of acceptable
self-insurance under the laws of the State of Florida to the City's Department of Risk
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Management. County represents that its self-insurance program covers actions to recover
for injury or loss of property, personal injury or death caused by the negligent or wrongful
acts or omission of its officers and employees. County further represents that it shall self -
insure against any and all damage or destruction to one or more of the subject Properties
and any buildings thereon, by any casualty, including but not limited to fire, windstorm
and hurricanes.
At its option, the County may procure general liability insurance covering its
operations and related liability at the Properties. If the County procures general liability
insurance, County shall name the City as an additional insured. If the insurer imposes a
charge to name the City as an additional insured, the County shall bear such cost.
Notwithstanding the above, County shall require that third parties using the
Properties, if any, furnish the County and the City, evidence of the following insurance
coverages unless this requirement is waived in writing by the City Manager:
A. Commercial Liability Insurance on a comprehensive general liability insurance
coverage form, or its equivalent, including contractual liability, products and completed
operations, personal injury and property and operations coverages against all claims,
demands or actions, bodily injury, personal injury, death or property damage occurring on
the Property with such limits as may be reasonably required by the City from time to
time, but not less than $1,000,000 per occurrence, combined single limit for bodily injury
and property damage. The City shall be named as Additional Insured on the policy or
policies of insurance. The third party shall also obtain and maintain in force for the
length of the agreement, a $1,000,000 Excess Umbrella type policy over and above the
base $1,000,000 requirement.
B. Automobile Liability Insurance covering all owned, non -owned and hired vehicles
used in conjunction with operations covered by this Agreement. The policy or policies of
insurance shall contain such limits as may be reasonably requested by the City from time
to time, but not less than $500,000 for bodily injury and property damage. The
requirements of this provision may be waived upon submission of a written statement that
no automobiles are used to conduct business.
C. Worker's Compensation in the form and amounts required by Florida law.
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D. Professional Liability as may be required by the City.
E. The City's Director of Risk Management reserves the right to amend the insurance
requirements for both the County and third parties in accordance with reasonable industry
practice by the issuance of ninety (90) days prior written notice to the County. The
County shall itself provide or require third parties to provide any other insurance or
security reasonably required by the City's Risk Management Department.
F. The policy or policies of insurance required shall be so written that the policy or
policies may not be canceled or materially changed without thirty (30) days advance
written notice to the City. Said notice should be delivered to the City of Miami,
Department of Risk Management, 444 SW 2nd Avenue, 9th Floor, Miami; FL 33130 with
copy to City of Miami, Department of Public Facilities, 444 SW 2nd Avenue, 3rd Floor,
Miami, FL 33130.
G. Current Evidence of Insurance and a Policy of Insurance evidencing the aforesaid
required insurance coverage shall be supplied to the Department of Risk Management of
the City at least fifteen (15) days prior to the commencement of the third party's usage of
the Property. Insurance policies required herein shall be issued by companies authorized
to do business under the laws of the State of Florida, with the following qualifications as
to management and financial strength: the company should be rated "A" as to
management, and no less than class "X" as to financial strength, in accordance with the
latest edition of Best's Key Rating Guide, or the company holds a valid Florida
Certificate of Authority and is a member of the Florida Guarantee Fund. All policies
and/or certificates of insurance are subject to review and verification by Risk
Management prior to insurance approval. Receipt of any documentation of insurance by
the City or by any of its representatives, which indicates less coverage than required, does
not constitute a waiver of the County's obligation to fulfill the insurance requirements
herein. The County's failure to require third parties to procure insurance shall in no way
release the County from its obligations and responsibilities as provided herein. Failure to
require third parties to procure insurance required by this Section shall constitute a default
of this Agreement as provided in Section 12 herein, entitled "Event of Default."
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If it can be determined that any loss or part thereof, shall be the fault of a third
party (i.e. a contractor or contractors, visitors to the building or any other person, persons
or organizations) except the City, then and in that event, the County may take all
necessary actions to cause such third party to pay such costs and the County shall be
responsible for the restoration of any and all losses incurred by the third party, subject to
Section 25 herein. In no event shall the City be liable for damage caused to the Property
or Properties by fire or other casualty. If no third party or parties shall be found liable or
if found liable, but unable to pay damages, then the costs of such repairs shall be ascribed
to the County.
24. DESTRUCTION TO PROPERTIES.
The County represents that it has self -insured the Properties occupied by the
County. If, in the event of any such casualty to one or more of the subject Properties
during the term of this Agreement and the applicable Property or Properties are not
rendered wholly unusable, the County shall promptly cause such damage to be repaired at
its sole cost and expense to substantially restore the Property or Properties to the
condition the Property or Properties were prior to the occurrence of such damage .
In the event the County elects to effect the necessary repairs on one or more of the
Properties and any buildings thereon, the full amount of rental payments for the
applicable Property or Properties shall continue and the County shall provide substitute
library facilities during the period of repair. Said substitute facilities may be mobile
libraries.
The City shall not be liable for interruption to the County's business or for
damage to or replacement or repair of the County's personal property (including, without
limitation, inventory, trade fixtures, floor coverings, furniture or other property removable
by the County) or for damage to or replacement or repair of any improvements installed
by County at the property.
25. OPTION TO TERMINATE DUE TO CASUALTY.
If the Property or Properties are (a) rendered wholly unusable, or (b) damaged in
whole or in part which exceeds fifty percent (50%) value of the Property or Properties so
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damaged, or (c) damaged or destroyed in whole or in part during the last three years of the
Term, or (d) if the building is damaged to the extent that it cannot be used for the
County's intended purpose for a period of ninety (90) or more consecutive days, then
either the City or the County may elect to terminate this Agreement by giving to the other
party notice of such election within ninety (90) days after the occurrence of such event. If
such notice is given, the rights and obligations of the Parties shall cease as of the date
specified in such notice, except that the County shall be required, at .its sole cost and
expense, to demolish the remains of the Properties or Properties so damaged, except that
the County shall be required, at is sole cost and expense, to demolish the remains of the
Property or Properties so damaged.
Upon termination of this Agreement pursuant to this Section, the County and the
City shall be released from any further obligations hereunder, except that such release
shall not apply to any sums then accrued or due, or to the County's obligations under
Section 21 of this Agreement entitled "Surrender of Properties" or to any obligation
otherwise surviving the termination of this Agreement, including but not limited the
provisions in Section 10 herein for substitute library facilities in case of discontinuance or
termination.
26. NO LIABILITY FOR PERSONAL PROPERTY.
The City and County agree to insure or self -insure their respective interests in
personal property to the extent each deems necessary or appropriate and hereby mutually
waive all rights to recovery for loss or damage by an means and waive all rights to
recovery for loss or damage by any means and waive all rights to recovery for loss and
damage to such property by any cause whatsoever. City and County hereby waive all
rights of subrogation against each other under any policy or policies they may carry or on
property placed or moved on the Properties.
27. SAFETY.
The County will allow City inspectors, agents or representatives the ability to
monitor its compliance with safety precautions as required by federal, state or local laws,
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rules, regulations and ordinances. By performing these inspections, the City, its agents, or
representatives are not assuming any liability by virtue of these laws, rules, regulations,
and ordinances. County shall have no recourse against the City, its agents, or
representatives from the occurrence, non-occurrence, or result of such inspection(s).
Upon occupancy of the Properties, County shall contact the City's Risk Management
Department to schedule inspection(s).
28. NOTICES.
All notices or other communications which may be given pursuant to this
Agreement shall be in writing and shall be deemed properly served if delivered by
personal service or by certified mail addressed to City and County at the addresses
indicated herein or as the same may be changed from time to time. Such notice shall be
deemed given on the day on which personally served or if by certified mail, on the fifth
day after being posted or the date of actual receipt, whichever is earlier.
To City:
City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
With Copies to:
City Attorney
City of Miami
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Director
Department of Public Facilities
City of Miami
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
29. ADVERTISING.
To County:
County Manager
Stephen P. Clark Center
111 NW 1 S` Street, Suite 2910
Miami, Florida 33128-1994
With Copies to:
Director
Miami -Dade County Public Library System
Main Library
101 West Flagler Street, 3`d Floor
Miami, Florida 33130
Director
Facilities & Utilities Management Division
Miami -Dade County GSA
200 NW 1 S` Street
Miami, Florida 33128
Any existing signage on the Properties shall be deemed approved. The County
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shall provide and the City shall reasonably allow signage that is in accordance with
County branding standards for signage at library facilities. The County shall not permit
any additional signs, decoration, or advertising matter to be placed upon the exterior of
the Properties without having first obtained the approval of the City's Director of the
Department of Public Facilities or his/her designee, which approval may be withheld for
any or no reason, at his/her sole discretion. County must further obtain approval from all
governmental authorities having jurisdiction, and must comply with all applicable
requirements set forth in the City of Miami Code and Zoning Ordinance.
Upon the cancellation of this Agreement, County shall, at its sole cost and
expense, remove any sign, decoration, advertising matter or other thing permitted
hereunder from the Properties. If any part of the Properties is in any way damaged by the
removal of such items, said damage shall be repaired by County at its sole cost and
expense. Should County fail to repair any damage caused to the Properties within ten
(10) days after receipt of written notice from the City directing the required repairs, the
City shall cause the Properties to be repaired at the sole cost and expense of County.
County shall pay the City the full cost of such repairs within five (5) days of receipt of an
invoice indicating the cost of such required repairs.
MISCELLANEOUS
30. COMPLIANCE WITH FEDERAL, STATE AND LOCAL
LAWS.
The County shall comply with all sanitary, health and public safety laws and
ordinances of the City, and all other applicable laws, ordinances and codes of federal,
state and local governments as they apply to this Agreement. The County shall comply
therewith as the same presently -exist and as they may be amended hereafter.
This Agreement shall be governed by and construed in accordance with the laws
of the State of Florida, regardless of any conflict of law or other rules which would
require the application of the laws of another jurisdiction.
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31. CONFLICT OF INTEREST.
The County is aware of the conflict of interest laws of the City of Miami (Miami
City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-
11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that
it will fully comply in all respects with the terms of said laws and any future amendments
thereto.
To the best of their knowledge and belief, City and County both state that no
person under their employ who presently exercises any functions or responsibilities in
connection with this Agreement has any personal financial interests, direct or indirect in
this Agreement. The County further covenants that, in the performance of this
Agreement, no person or entity having such conflicting interest shall be utilized in respect
to services provided hereunder. Any such conflict of interest(s) on the part of County, its
employees or associated persons, or entities must be disclosed in writing to the City.
32. NON-DISCRIMINATION.
County shall not discriminate as to race, color, religion, sex, national origin, age,
disability, or marital status in connection with its occupancy and/or use of the Properties
and improvements thereon.
33. ADA
County shall affirmatively comply with all applicable provisions of the Americans
with Disabilities Act ("ADA") in the course of utilizing the Properties, including Titles I
and II of the ADA (regarding non-discrimination on the basis of disability) and all
applicable regulations, guidelines and standards.
34. AFFIRMATIVE ACTION.
County shall have in place an Affirmative Action/Equal Employment Opportunity
Policy and shall institute a plan for its achievement which will require that action be
taken to provide equal opportunity in hiring and promoting women, minorities, the
disabled and veterans. Such plan will include a set of positive measures which will be
22
taken to insure non-discrimination in the work place as it relates to hiring, firing, training
and promotion. In lieu of an Affirmative Action Equal Opportunity Policy/Plan, County
may submit a Statement of Assurance indicating that their operation complies with all
relevant Civil Rights laws and regulations.
35. MINORITY/WOMEN BUSINESS UTILIZATION.
The Provider may use its best efforts to purchase/contract fifty-one (51%) of its
annual goods and services requirements from Hispanic, Black and Women
businesses/Providers registered/certified with the City's Office of Minority/Women
Business Affairs. Such lists are available to the Provider at the City's Office of
Minority/Women Business Affairs.
36. HAZARDOUS MATERIALS.
The County shall, at its sole cost and expense, at all times and in all respects
comply with all federal, state and local laws, statutes, ordinances and regulations, rules,
rulings, policies, orders, administrative actions and administrative orders, including,
without limitation, any Hazardous Material Laws ("Hazardous Materials Laws") relating
to industrial hygiene, environmental protection or the use, storage, disposal or
transportation of any flammable explosives, toxic substances or other hazardous,
contaminated or polluting materials, substances or wastes, including, without limitation,
any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic
Substances, under any such laws, ordinances or regulations (collectively "Hazardous
Materials").
The County shall, at its sole cost and expense, procure, maintain in effect, and
comply with all conditions of any and all permits, licenses and other governmental and
regulatory approvals relating to the presence of Hazardous Materials within, on, under or
about the Properties required for the County's use, or storage of, any Hazardous Materials
in or about the Properties in conformity with all applicable Hazardous Materials Laws
and prudent industry practices regarding management of such Hazardous Materials.
23
Upon termination or expiration of this Agreement, the County shall, at its sole cost and
expense, cause all Hazardous Materials, including their storage devices, placed in or
about the Properties by the County or at the County's direction, to be removed from the
Properties and transported for use, storage or disposal in accordance and compliance with
all applicable Hazardous Materials Laws.
The City acknowledges that it is not the intent of this Article to prohibit the
County from operating in the Properties for the uses described in the Section of this
Agreement entitled "Purpose". The County may operate according to the custom of the
industry, so long as the use or presence of Hazardous Materials is strictly and properly
monitored according to, and in compliance with, all applicable governmental
requirements. The requirements of this Section of the Agreement shall survive the
expiration or termination of this Agreement.
37. RADON GAS.
Radon is a naturally occurring radioactive gas that, when it has accumulated in a
building in sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit. The County may have an appropriately
licensed person test the Properties for radon. If the radon level exceeds acceptable EPA
standards, the City may choose to reduce the radon level to an acceptable EPA level,
failing which either party may cancel this Agreement. In the event that such reduction
requires evacuation of any of the Properties, the City shall give the County thirty (30)
day's notice, assuming the circumstances of the radon gas finding allow.
38. LITIGATION.
Any dispute herein shall be resolved in the courts of Miami -Dade County, Florida.
The parties shall attempt to mediate any dispute without litigation. However, this is not
intended to establish mediation as a condition precedent before pursuing specific
performance, equitable or injunctive relief.
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39. COURT COSTS AND ATTORNEY FEES.
In the event it becomes necessary for the City or County to institute legal
proceedings to enforce or interpret the provisions of this Agreement, each party shall pay
their respective court costs and attorney fees through all trial and appellate levels.
40. WAIVER OF JURY TRIAL.
The parties hereby knowingly, irrevocably, voluntarily and intentionally waive
any right either may have to a trial by jury in respect of any action, proceeding or
counterclaim based on this Agreement, or arising out of, under or in connection with this
Agreement or any amendment or modification of this Agreement, or any other agreement
executed by and between the parties in connection with this Agreement, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party
hereto. This waiver of jury trial provision is a material inducement for the City and
County entering into the subject transaction.
41. NON•WAIVER OF DEFAULT.
Any failure by the City at any time or from time to time to enforce and require the
strict keeping and performance of any of the terms or conditions of this Agreement shall
not constitute a waiver of any such terms or conditions at any future time and shall not
prevent the City from insisting on the strict keeping and performance of such terms or
conditions at any later time. No waiver of any right hereunder shall be effective unless in
writing and signed by the City.
42. TIME OF ESSENCE.
It is expressly agreed by the parties hereto that time is of the essence with respect
to this Agreement. If the final day of any period falls on a weekend or legal holiday, then
the final day of said period or the date of performance shall be extended to the next
business day thereafter.
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43. FURTHER ACTS.
In addition to the acts and deeds recited herein and contemplated to be performed,
executed and/or delivered by the parties, the parties each agree to perform, execute and/or
deliver or cause to be performed any and all such further acts, deeds and assurances as
may be necessary to consummate the transactions contemplated hereby.
44. AMENDMENTS AND MODIFICATIONS.
No amendments or modifications to this Agreement shall be binding on either
party unless in writing, signed by both parties and approved by the City Manager and
County Mayor or his/her designee. The City Manager is authorized to make non -
substantive amendments or modifications to this Agreement as needed, including the
decrease in the number of libraries covered under this Agreement or extensions to this
Agreement beyond the initial lease term contemplated in Section 3 herein.
45. SEVERABILITY.
In the event any section, clause or sentence of this Agreement or any future
amendment is declared invalid by a court of competent jurisdiction, such section, clause
or sentence shall be stricken from the subject Agreement and the balance of the
Agreement shall not be affected by the deletion thereof.
46. CAPTIONS.
Title and section headings are for convenient reference and are not a part of
this Agreement.
47. INTERPRETATION.
This Agreement is the result of negotiations between the parties and has been
typed/printed by one party for the convenience of both parties. Should the provisions of
this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or
arbitral body interpreting or construing the same shall not apply the assumption that the
terms hereof shall be more strictly construed against one party by reason of the rule of
construction nor that an instrument is to be construed more strictly against the party
which itself or through its agents prepared same, it being agreed that the agents of both
parties have equally participated in the preparation of this Agreement.
48. CONSTRUCTION OF AGREEMENT.
This Agreement shall be construed and enforced according to the laws of the State
of Florida.
49. COVENANTS BINDING.
All covenants and agreements contained herein shall be binding upon and inure to
the benefit of the heirs, executors, administrators, legal representatives, successors and
assigns of the Parties; provided that, the County shall not sublet in whole or in part, nor
assign this lease or any part of it, nor grant any concession on the premises, without
having first obtained the written authorization of the City Manager of the City, which.
approval may be conditioned or withheld in the City Manager's sole discretion.
50. ENTIRE AGREEMENT.
This instrument and its attachments constitute the sole and only Agreement of the
parties hereto and correctly sets 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.
51. AUTHORITY.
Each of the parties hereto acknowledges it is duly authorized to enter into this
Agreement and that the signatories below are duly authorized to execute this Agreement
on behalf of the respective parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
of the day and year first above written.
CITY OF MIAMI a municipal MIAMI-DADE COUNTY, a political
Corporation o the S to of Florida. Subdivision of the State of Florida.
By:
Pedro G. Hernandez
City Manager
ATTEST:
By:
By:
Carlos Alvarez
Miami -Dade Cgtunty Mayor
* AXIEST:
•-«* GOM4. •
1 !' J 1 J4'-.• Q
Priscilla A. Thompson / ) �� tics - ' uvin
City Clerk -/4J ag'" 4.. rrey�s C €'rk of the Court
Approved as to Form and Correctness:
By:
Julie 0. Bru
City Attorney
Approved as to Insurance Requirements:
/ 7v it,t1.
LeeAnn BrFhm; Director
Department of Risk Management