HomeMy WebLinkAboutExhibit 1(19.'13!2O l 16: (i7 FAX 305372,I64B CRA
Ti(S AGREEMENT, made this
THE CrTY OF MIAMI at
May 11 2L'UI
5TArE OF fl.091OA DEPARTMENT OF ntkoseoire7oN
AIRSPACE AGREEMENT
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ITEWSEGMENT NO. 2515611
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MANAGING DISTRICT; Six
RAP. NO.: 0961 067 l
STATE ROAD NO.: 9A (1-95)
COUNTY.: Miami -Dade
PARCEL NO,: 834
day of , between —
(Lessee) and the STATE of FLORIDA DEPARTMENT OF TRANSPORTATION (Department), an agency
crime State of Florida (State).
WITNESSETM:
WHEREAS, the Departrent may convey a leasehold In the name of the State. In any land, buildings, or other property. real or
personal, acquired undo( Section 237.26, Florida Statutes; and
WHEREAS, the United States Department of Transportation, Federal Highway Administration (FHWA), requires any use or
airspace above, and/or below the highways established gradetine, lying within the approved right of way limits on a Federal Aid
System, to be accomplished pursuant to an airspace agreement in accordanoe with 23 CFR, Part 710, and
WHEREAS, the Department hes acquired sufficient legal right, title, and interest in the right of way of NW 10 STREET
AND NW 11 STREET which includes the property described i(I 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 gradetine of tho property described
Exhibit "A', attached and made a part hereof for the following purpose: RECREATIONAL. PURPOSES AMENITY AREA
WHEREAS, the proposed use will not impair the full use and safety of the highway, require or permit vehicurar access to such
space directly from the established gnedeline of said highway, or interfere with the free flow of traffic on said highway.
NOW, THEREFORE, in consideration of the premises made a part hoefof, ana 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 a$ follows:
1. Premises
The premises hereto ere true end correct and form an Integral pars of this Agreement,
Z. Term
The Department does hereby lease unto Lessee the airspace above or below gradetine of the property for a period of
TWENTY FIVE YEARS beginning with the date of this Agreement. One renewal of this Agreement
may be made for ZERO YEARS . Nowover, except for a public
purpose conveyance, sue renewal may not exceed -eve years, Nothing herein shall be construed to in any way grant an
interest in the property lying below said airspace.
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3. Rent
a, Lessee shall pay to the Department as rant seal 0 month 0 quarter Q year an cr before the first day of
each rent payment period, ZERO plus applicable sales talc. Wren this Agreement is terminated, any unearned
rent and sales tax payment shell be refunded to Lessee. However, no such refund shalt 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: NIA
d. Lessee shall be responsible for all state, county, city, end local taxes that may be assessed, Including real property taxes end
special assessments, In the event met no rant is specified herein, than it Pas been determined that eisin
cr the use by Lessee is a
nonproprietary use by a governmental agency or an exception from the current fair rtrarket rental value requirement (23 U.S.C. Sect;on
1 56) has been obtained for social. environmental, or ecanomic mitigation (SEE~) purposes. to the event that it should tie determined at
any time that the use is not a nonproprietary use by a governmental agency or that the SEE except>'on does not apply or has been
revoked, Lessee agrees to pay, at that time, rent a5 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 tills 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 rats 'allowed by taw
from the due dote thereof, This provision shall not obligate the Department to accept late rent payments or provide Lessee a grace
period
4. use Occupancv, 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; AMENITY AREA AS CESCRIESED IN EXHIBIT "B"
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 futures of the use of the airspace in relation to the highway facility are sat forth In composite Exhibit "8"
attached hereto and by this reference made a part hereof. in addition, said corposite Exhibit "fa" also corriains a three-dimensional
description of the space to be used, unless the use is of a surface area beneath an eievaled hIghwey structure or ad}aoent to a
highway roadway for recreation, public park, beautification, parking of motor venlcles,-public mass transit facilities, or other similar
uses, in which case, a mates and bounds description of the surface eras, togather with appropriate plena or cross sections clearly
defining the vertical use limits, may be substituted tor 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 "13"
shall require prier written 'approval from the appropriate District Secretary of the Deportment, Subject to concurrence by the FHWA
e. The Department, through its duty sUthortxed representatives, employees, and contractors, and any authorized FHWA
representatNe, may enter th a facility et any tune 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, remc3diaUon, end
any other ectlon which is reasonable and necessary to conduct an environmental assessment or to aaate an errvironrnertal hazard
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f. Lessee, at Lessee's sole cost and expentse, shall maintain the facility to occupy the elf -space se as to assure that the structures
and the area within the highway right of way boundaries wilt be kept in good eondrtion, bath as to safety and appearance, Such
maintenance will be acCorrlplished In a Manner so as to cause no unreasonable interference with the highway use. In the event that
Lessee falls to so malntaih the facility, the Department, through Its duty authorized representatives, employees, and contractors, may
enter thrr facility To perform such work, and the cost thereof shell be chargeable to MA Lessee and shall be immediately due and
payable to the Department upon the perfon-n noe of such work
g, portable or temporary advertising signs are prohibited.
h. The design, occuprahcy, and use of the airspace shall not adversely affect the use, safety, appearance, or enjoyment of the
highway by smoke. fumes, vapors, odors, droppings, ar 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
FNWA and subject to both Depertment and FHWAapproval,
j, The proposed use shall net cause ar allow any changes in ttie existing drainage on the properly under the airspace.
k. Lessee shall not occupy, use, permit, or suffer tiee airspace, the property, the fadUty, or any part thereof 10 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 o nuisance of any idnd, nor -for ery purpose or in arry way in violation of any
present or future federal, stare, or local taws, orders, directions, ordinances, or regulations,
i. Any activities in any way involving hazardous materials or substances of any kind whatsoever, either as those terms rrray be
defined under any state or federdl 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 ar yeas released onto adjoining property as a resu?. of Lessee's use of the
airspace under reaae, tie Lessee shall be held similarly responsible. The Lessee shall indemnify, defend, and hold harmless the
Department from any claim, lass, damage, cost, charge, or expense arising out of any such contamination.
m. Existing utilities and all corresponding easements shall remain in plane end Lessee shalt not disturb or Interfere with the
Same.
5, ledemnii cation4 To the ektrent provided by law, Lessee shalt indemnify, defend, and hold harmless the Department and all of
as otli'cers, agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission, or
negligent act by Lessee, ifs oRlcers, agents, or employees, during the performance of the Agreement, except that nether Lessee, Its
agents, or its employees will be liable under this paragraph tor any claim, loss, darndge, 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 tele performance of the
Agreemene
lhfien the Department receives a notice of claim for damages that may have been caused by Lessee In the performance of
service& required under Mit Agreement the Department will Immediately forward the claim to Lessee. Lessee end the Department
will evaluate the claim end report their findings to each other within fourteen (14) working days and will jointly discuss options In
defending the claim. After reviewing the dean, the Department will determine whether to require the participation or 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 oven expences for the evaluaticn. settlement negotiations, and trial, If
any.
o. 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 ell claims for injury and damage to parsons and property, and for the loss of
life or property occurring in, on, or about the land arieing 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 ON1= MILLION (a 1.000,000.0(1 ) for bodily injury or death to any one person or any numbsr
or persons in any one occurrence and not less than ONE MILLION ($ 1.OQO D00 po )1
for property damage, or a combined coverage of not less then MILLION (5 ter 0 Q00 0Q 1.
All such policies shall be issued by companies licensed to do business in the Stele of Florida and ati such policies shall contain a
provision vvhareby the same cannot be canceled or modified unless the Department 1s given at least sty (6O) days prior wntten
noting of such cancellation ar modification, Lessee shall provide the Department aertfficatee 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 Guth minimum coverage for liability will be provided forte property.
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7. Termination
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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 underxtood and agreed to by the Lessee that the Department reserves the right to terminate this Agreement immadlaiely
without prior notice. in the event the Lessee violates any of the conditions of this Agreement and such violation )s not corrected within
a reasonable time after written notice of noncompliance has boon given. In the event the Agreement Is terminated and the
Department deems it neeestery to request the removal of the fadtfty on the property, the removal shall be accomplished by the
Lessee In a manner prescrteed by the Department at no cost to the Department or the FH1NA.
c. The Lessee must notify the Department of es intention to renew this Agreement rice later than thirty (3a) 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 deelver the property to tee Cepartrnent, or its agents, in the coedition existing
at the commoncement 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 pert thereof is requested by the Department, any such structures shall be
removes by the Lessee at Lessee's expense by midnight of the day of termination of this Agreement and the property restored as
nearly as predicable.
f Thrs Agreement is terrnlnable by the Department in the event that the facility ceases to be used for itm intended purpose Or
is abandoned.
a. Eminent Clomein
Lessee acknowledges and agrees that its relationship welt the Department under this Agreement is one or tandJord and tenant and
no other relationship either expressed ar implied shall be deemed to apply to the parties under eels Agreemerrt Termination of this
Agreement for any cause shall not be deemed a taking under any eminent domain or other law so at1 to entitle Lessee to
cempensation for any interest suffered or loot 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 k might have for full compensation. or
damages of any sort, including special damages, severance derneees, removal costs, or lass of business profits, resotting from
Lessee's Toss of occupancy of the property specified in thla Agreement: er any such nghts, claims, or darriages flowing from adjacent
properties owned or leased by Lessee as a result of Lessee's lass of occupancy of the property specified in this Agreement. Lessee
also hereby waives and relinquishes any legal rights end monetary claims which it might have for fill compensation, or damages of
any sort as set out above, as a result of Lessee's lass of occupancy of the property, when any or all adjacent propertlos owned ar
leased by Lessee are taken by eminent dorneln proceedings or sold under the Threat thereof. This waiver and reilnquiehrnent applies
whether this Agreement is still in existence on the date of taking or cage or has been terminated prior theme).
9. Miecelleneoes
e. The airspace and Lessees rights under this Agreement shalt 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 (7ftle VI, Appendix "C") end 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 tand
that {1) no person, on the ground of race, color, sex, or national origin shalt be exc',uded frorrl participation in, he denied the
benefits of, or be otherwise subjected to discrimination in the use of said property end facility; {2) that in connection with the
construction of any improvements on said property and facility end the furnishing of services thereon, no cescriminabon shall
be practiced in the selection of employeee and contractors. by contractors; and (3) that she Lessee shall use the property
and facility in compliance with all other requirements irnposed pursuarrt to 15 CFR Part 8, Subpart A.
09. 13 2(sn:t 16: (i7 FAX 3053724846 CRA.
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2, That 1n the event of broach of any of the above covenants, the Department shall have the right to terminate this Agreement and
to ro-erter and repossess said property and the facility thereon, and hold the same as 'rf this Agreement had never been rrrade 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
Ftonda, county or Focal governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or
any part thereof, and of all inaurance policies covering the property, land, and facility, or any part thereof.
d, in addttlon to or in lieu of the terms and conditions contained herein, the provisions of any Addendum of even date herewith
which iv identified to be a pert hereof is hereby Incorporated herein and made a part hereof by this reference. In the evert of any
conflict between the terms and conditions hereof and the previclohs of the Addendum(s), the provisions of the Addendure(s) shall
control, unless the prov:slans thereof are prohibited bylaw.
e. This Agreement constitutes the complete and final expression of the parties with respect to the subject matter hereof end
supersedes alt prior agreements, understandings, or negotiations with respectthereto. 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, le familiar with its terms, and has hed 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, ar amendment of this A,greernant or any of its
conditions rer 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
servioes, or any other utility or service used on the property,
1. This Agreement shall be governed by the laws of the Stew of Florida, and any applicable lows of the United Slates 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 {n writing to the Department.
09••13.•200,1 18:07 FAX 305,17246.16
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above
written.
By.
Name:
ir119;
Attest
Name:
Title
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Pe 54007
STATE OF FLORIDA
CITY OF MIAMI _ DEPARTMENT OP TRANSPORTATION
LESSEE (Carnpeny Name, if applicable)
(Seal)
8y:
Name
Attest
NarneT ltle:
Name:
District &eeret/ry
Legal Review
District Counsel
EXHIBIT "A"
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PROPER-Y LIES IN
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THE S.W. V. OF SECTION 36-53-4i
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