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HomeMy WebLinkAboutExhibit 1ACCESS AND INDEMNIFICATION AGREEMENT This Access and Indemnification. Agreement (the "Agreement"), made and entered into effective the 1 Si day of March, 2011 (the "Effective Date"), by and between the City of Miami, a municipal corporation of the State of Florida whose principal address is 3500 Pan American Drive, Miami, Florida 33133 ("City"), and the Miami Heat Limited Partnership, a Florida limited partnership organized under the laws of the State of Florida and qualified to transact business in Florida, whose principal address is, 601 Biscayne Blvd., Miami, FL 33132 ("MHLP"), is entered into as follows: WITNESSETH: NOW THEREFOR AND IN CONSIDERATION of the premises and the mutual covenants and conditions contained herein, the parties hereto agree as follows: I. PURPOSE AND RIGHT TO ACCESS. In the Agreement the City of Miami shall be referred to as the "City". For purposes of this Agreement "City" without modification shall mean the City Manager. The City grants to MHLP and its designee temporary access rights to enter upon, subject to the conditions and limitations hereinafter contained and solely for the Teiui and any Extended Term (as both are defined below), certain city -owned property situated on certain municipal park named Grapeland Park located at 1550 NW 37th Avenue, Miami, FL 33125, in the City of Miami, Miami -Dade County, Florida described in Exhibit "A", attached hereto and made a part hereof (the "Property") solely for the limited purpose of performing certain work as defined below in connection with the installation of the Learn and Play Center ("Center") subject to MHLP providing the City's Director of Parks and Recreation at 444 SW 2 Avenue, 8th Floor, Miami, Florida 33130, with twenty-four (24) hours advance written notice of when (date and time) access is required by MHLP to commence work: This notice requirement shall not be construed to require daily notice, but it shall be sufficient that MHLP provide the reasonably anticipated time frame (dates) for conducting the below described scope of work in the initial notice. II I RM MHLP requested and has received a non-exclusive access to the Property as described in Exhibit "A", for the purposes of performing the Scope of Work. The term of this Access Agreement shall be from the period commencing March 1, 2011 and ending on April 30, 2011 ("Term"); provided, however, that this Agreement shall sooner terminate if the Activities being performed by MHLP at the Center is concluded in accordance with its terms (whereupon the Agreement granted herein shall be deemed automatically terminated and of no further force or effect). Upon termination of the Agreement, all rights and privileges derived from, and all duties and obligations created and imposed by the provisions of this Agreement, shall terminate and have no further force or effect; provided however that the termination of this Agreement shall not limit or affect any remedy at law or in equity that either party may have against any other Pg (/_.&? parties with respect to any liability or obligation arising or to be performed under this Agreement prior to the date of such termination. MHLP agrees to perform the Activities, also to be known as the Scope of Work or cause its work to be performed in a manner so as not to unreasonably interfere with the City's ownership and the use of the Property by the City and its Grapeland Park patrons and guests. III. THE ACTIVITIES. The City hereby grants MHLP, a Florida limited partnership, and its designee access to the Grapeland Park recreation center for purposes of installing a Learn and Play Center at that same location ("Center"), on the date(s) and time(s) mutually agreed in this Agreement between the City of Miami and MHLP (the "Activities"). The Activities or Scope of Work which have a total improvement value of twenty-eight thousand five hundred forty-two dollars and eighty-four cents ($28,542.84), are more particularly described in Exhibit "B" attached hereto and made a part hereof. MHLP has graciously, generously and kindly donated to the City the following improvements, inclusive of their delivery and complete installation on the Property the fixtures, furniture, equipment ("FFE") to be located at the Center and described in Exhibit `B" attached hereto. The FFE is being donated in fee simple by MHLP to the City, free and clear of any liens, security interests, encumbrances or other impositions, and MHLP will further concurrently convey to the City any written warranties, bills of sale, manufacturers brochures and manuals, and similar documents or data it currently has in its possession, if any, as to the FFE. IV. RESTORATION OF PROPERTY. Upon completion of the Scope of Work, MHLP agrees, at no cost to the City, to ensure that the Property is restored to a similar or better condition as the Property existed at the effective date of this Agreement and to repair and restore any damage to the Property caused as a result of or by the conduct of the MHLP's Scope of Work on the Property. V. INDEMNIFICATION. In further-.consideration-for-the--Activities-as-described above,--MHL-P-agrees-to-indemnify, release, save and hold harmless the City of Miami, its officials assignees, officers, directors, subsidiaries, employees and agents (collectively, the "Released Parties") from and against any and all damages, actions, losses or claims of any kind made against or suffered by the Released Parties resulting, directly or indirectly, from the: (a) installation, fabrication, construction, permitting, and FFE made by MHLP at the Center; and (b) the Activities under this Agreement undertaken by MHLP or its designees, except to the extent that claims related to the Activities arise directly from the Released Parties negligence, willful acts or omissions: VI. RIGHT TO USE. The City of Miami acknowledges and agrees that MHLP, subject to the City Manager's 2 written approval, which will not be unreasonably withheld or delayed reserve the non-exclusive right to use the City of Miami's name and actions (collectively "Information") for a period of three (3) years from the date of this Agreement in connection with its participation in the Activities related to the Center for promotional or .archival purposes related to the Center without compensation or other consideration. VII. CITY APPROVAL AND ACKNOWLEDGMENT. Whenever an item herein is subject to approval by the City that does not require City Commission approval, the City Manager shall be the sole judge of the worthiness and benefit of the item for which approval is sought and shall approve or disapprove such item at his/her sole discretion. The City acknowledges that, to the extent provided by 768.28, Fla. Stat., it will be responsible for property damage or personal injury caused by the negligence of the City, as well as for the upkeep, maintenanceand/or operation of the Center once the improvements by MHLP have been completed and accepted by the City. MHLP has no right or obligation to use, maintain, upkeep or operate the Center and the temporary rights granted hereunder will be terminated once the Activities have been performed and completed by MHLP and accepted by the City. VIII. MODIFICATIONS, AMENDMENTS, EXTENSIONS, WAIVERS. Any alterations, variations, modifications, extensions or waivers of provisions of this Agreement, including but not limited to access to and any other uses of the Property, and the effective Term, any Extended Term, and any extensions or renewals, shall only be valid when they have been reduced to writing, duly authorized by the City Manager or by the City Commission (as applicable in accordance with the City Code), duly authorized by MHLP's Board of Directors or Corporate Officers, as applicable, executed by the City Manager, the Department Director, approved by the City Risk Management Director and the City Attorney, and attested by the City Clerk on behalf of the City, and by the authorized signatory of MHLP, and attached to the originals of this Agreement. IX. NOTICES. All notices pursuant to this Agreement shall be in writing and sent by certified mail or delivered by personal service to the addresses for each Party appearing on page one (1) of this Agreement and as indicated below, or as the same may be changed in writing from time to time. For MHLP to: Miami Heat Limited Partnership 601 Biscayne Blvd. Miami, FL 33132 Attention: Eve Wright For the City to: City Manager, City of Miami 3 Miami Riverside Center 444 S.W. 2nd Avenue, 10th Floor Miami, Florida 33130 Director, Public Facilities Department City of Miami, Miami Riverside Center 444 S.W. 2°d Avenue, 3rd Floor Miami, Florida 33130 City Attorney City of Miami, Miami Riverside Center 444 S.W. 2" Avenue, 9th Floor Miami, Florida 33130 It is MHLP's responsibility to advise the City in writing of any changes in MHLP's contact names, addresses and/or telephone numbers. 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. X. GOVERNING LAW, VENUE & ATTORNEYS' FEES. This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. The parties, in their performance of this Agreement will comply with applicable federal, state, county and city laws. Venue in any civil actions between the parties arising out of the terms of this Agreement and any action involving the enforcement or interpretation of any rights hereunder shall be submitted in Miami -Dade County, Florida. The parties knowingly and voluntarily agree to waive their right to demand a jury trial or to file permissive counterclaims in any civil actions between them arising out of this Agreement. The respective parties will bear their own attorney's fees in any civil actions, appeals, or other claims between them arising out of this Agreement. XI. ENTIRE AGREEMENT. This Agreement with its attachments referenced below embodies and constitutes the entire_understanding_between_the City__and_.MHLP_concerning the Activities, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written with respect thereto are merged therein. Nothing in this Agreement shall be construed to make the parties hereto partners or joint venturers or render either of said parties liable for the debts or obligations of the other. The parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this Agreement, and that this Agreement contains the entire Agreement between the parties as to all matters contained herein. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that any oral representations or modifications concerning this Agreement shall be of no force or effect. This Agreement may be modified, altered or amended only by a written amendment duly executed by all parties hereto or their authorized representatives. The City 4 Manager is authorized to amend or modify this. Agreement as needed on behalf of the City and in accordance with the aforementioned terms. Exhibit A Exhibit B XIL DEFAULT. The Property The Activities or Scope of Work In the event either MHLP or theCitydefaults or fails to observe the terms and conditions of this. Agreement in any material aspect, the aggrieved party shall have the rightto do any one of the following: WIT By: Print: Title: Date: 1. Give notice of the default, specify required corrective action, and the time period within which corrective action is required to avoid immediate termination of this Agreement; 2. .Give :thirty (30) days written: notice of its intention to terminate this. Agreement for cause. Thirty (30) days_ thereafter, this Agreement will end regardless of any corrective: action by either party; and/or 3. Immediately terminate this Agreement,ifin the sole discretion of the aggrieved party, thedefault or failure to observe terms and: conditions is so egregious as to warrant immediate:termination. Upon ,such ,termination, MHLP's rights to make improvements on. the Property will end. forthwith. ESSES: 3(RI 1 By:aj Pnnt: ,5 '.nag � � t j,""P ,^i 4.4f L> Title: ! E e . As vat, Date: --- AI1-ES`I=: -- By: 'Priscilla A. Thompson, City Clerk Date: MIAl 11 HEAT,LT . B f R:VNtRSHIP- By: Print: ?.r Title:- FBA II, INC:. General'Partner Date: 3-1G- t I ATTEST: By: CoSecre Date: 3 - / G - l CITY -OF-I AM!,-a;municipal -corporation--.__.--- of the State of Florida By: Tony E. Crapp, City Manager Date: APPROVED AS TO LEGAL FORM AND :CORRECTNESS: .By: 5 Julie 0. Bra, City Attorney EXHIBIT "A" THE PROPERTY Summary Details: Folio No.: 01-3132-000-0090 Property: 1550 NW 37 AVE Mailing Address: CITY OF MIAMI-DEPT OF P&D ASSET MANAGEMENT DIVISION 444 SW 2 AVE STE #325 MIAMI FL 33130-1910 Property Information: Primary Zone: 8002 PARKS & RECREATION CLUC: 0040 MUNICIPAL Beds/Baths: 0/0 Floors: 1 Living Units: 0 Adj Sq Footage: 31,642 Lot Size: , 8.42 ACRES Year Built: 1972 Legal Description: 32 53 41 48.42 AC PT OF NE1/4 W OF SAL RY R/W & LESS 8.33 AC DESC AS PT OF NE1/4W OF SAL RAN N OF 302FTS OF TAMIAMI CAN IN SEC 29 & 32 53 41 ALL LESS RDS PER PB 28-26 LESS LE JEUNE RD Assessment Information: Year: I 2010 I 2009 Land Value: I $581,040 J $581,040 Building Value: $3,014,433 I $1,419,063 Market Value: $3,595,473 $2,000,103 Assessed Value: I $3,595,473 $2,000,103 Taxable Value Information: Year: 2010 2009 Taxing Authority: Applied Exemption/ Taxable Value: Applied Exemption/ Taxable Value: Regional:--------- $3,595,473/$0-_ ._$2,000,103/$0_.-.-__._-- - County: $3,595,473/$0 $2,000,103/$0 City: $3,595,473/$0 $2,000,103/$0 School Board: $3,595,473/$0 $2,000,103/$0 EXHIBIT "B" THE ACTIVITIES / SCOPE OF WORKI I. Overall Facelift a. New Paint for Walls b. New Painted Baseboards for Installation c. Wall Graphic Designs and Corkboard d. New Furniture 1. One (1) Sofa 2. One (1) Love Seat 3. Two (2) Basketball Ottomans 4. Four (4) Gaming Chairs 5. One (1) Fuse Ball Table e. New Flooring with Installation f. New Blinds with Installation g. One (1) Area Rug h. One (1) Desk i. One (1) End Table j. One (1) Credenza k. Two (2) Chairs 1. One (1) Wall Clock II. Installation of Electronic Equipment a. One (1) New Play Station 3 Console b. Four (4) New Play Station 3 Controls c. Two (2) New Play Station 3 Video Games d. One (1) New 50" Plasma Television III. Library Area a. Two (2) New Library Book Cases b. New Library Books MHLP has agreed to donate the above referenced goods and services to the City of Miami, to be installed and used at the Grapeland Park, Learn and Play Center.