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HomeMy WebLinkAboutExhibitAfter Recordation Return this instrument to: Victoria Mendez, City Attorney OFFICE OF THE CITY ATTORNEY City of Miami, Florida 444 S.W. 2 Avenue, 9th Floor Miami, Florida 33130-I910 (Space Above for Recorder's Use Only) TEMPORARY ACCESS AND HOLD HARMLESS / INDEMNIFICATION AGREEMENT THIS TEMPORARY ACCESS AND HOLD HARMLESS / INDEMNIFICATION AGREEMENT (the "Agreement"), is made and entered into this day of , 2017, by and between THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, a body corporate and politic existing under the laws of the State of Florida (the "School Board") and THE CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, in the County of Miami -Dade (the "City"). The School Board and City are sometimes referred to in this Agreement individually as "Party" and collectively as the "Parties". RECITALS: WHEREAS, the City is the owner in fee simple of certain real property, located at 525 NW 62 ST with a folio number of 01-3113-027-0010, and known as Athalie Range Park, ("Range Park"); and WHEREAS, Northwest Sixty-second (62nd) Street is a dedicated Public Right -of -Way maintained by the City ("City ROW"); and WHEREAS, the School Board is the owner in fee simple of certain real property located at 6101 NW 5 CT with a folio number of 01-3113-088-0010, and known as Miami Edison Senior High School ("Edison High School"); and 1 WHEREAS, the School Board wishes to remove the pedestrian bridge located on, and connecting, Edison High School and Range Park, and situated in the air space above the City ROW (the "Bridge"); and WHEREAS, the School Board has requested permission from the City to temporarily access Range Park to demolish and remove the Bridge; and WHEREAS, the City requires the execution of this Agreement as a condition precedent to the granting of temporary access to and use of Range Park, to demolish and remove the Bridge. NOW, THEREFORE, in consideration of the permission by the City to temporarily allow the School Board access to Range Park to demolish and remove the Bridge, subject to the terms and conditions set forth herein, the School Board and the City agree as follows: I . The foregoing recitals are true and correct and made a part hereof. 2. The School Board, including any contractors, subcontractors, or other agents thereof, is hereby allowed temporary access to and use of a portion of Range Park, as shown on the sketch included as Exhibit "A" hereto and made a part hereof ("Use Area"), for the demolition and removal of the Bridge ("Project"). In addition, the School Board, including any contractors, subcontractors, or other agents thereof, shall have the right of ingress and egress across portions of the Park necessary for the School Board, including any contractors, subcontractors, or other agents thereof, to gain access to the Use Area from 5fh Avenue or nearest public right-of-way. 3. The School Board shall pay all actual or estimated permit and other applicable regulatory fees associated with the School Board's temporary access and/or use of the Use Area prior to issuance of any building permits. 4. The effective date of this Agreement shall be the date upon which the last of the Parties initials or executes this Agreement ("Effective Date"). The term of this Agreement shall commence on the date of issuance of the permits for the Project within the Use Area ("Commencement Date"). 5. Subject to the provisions of Section 15 of the Agreement, the School Board acknowledges that the expiration of this Agreement is the earlier of: (1) one year from the Commencement Date of this Agreement, or (2) the date the School Board notifies the City that it has completed the Project 2 within the Use Area, at which time the School Board will no longer have temporary authorization pursuant to the provisions contained herein to access, use, or conduct any activities whatsoever on Range Park, unless otherwise permitted by other valid agreement with the City. The Parties agree that the term of this Agreement may be extended, under the same terms and conditions set forth herein, for an additional period of six (6) months, at the mutual agreement of the Parties, provided the School Board gives written notice to the City at least thirty (30) days prior to the expiration of the initial term. Notwithstanding the above, the School Board may cancel this Agreement at any time, by providing the City with ten (1 0) days advance written notice. 6. The School Board shall operate the Project during the following hours: Monday -Sunday from 6:00 PM - 6:00 AM. The School Board may modify the foregoing hours of operation, subject to the prior written approval of the City. 7. The Use Area is located within Range Park, a City park that is open to the public. As such, the School Board shall preserve the public nature of the park and shall provide means of access to Range Park around the Use Area, including signs directing members of the public accordingly. 8. The School Board shall install a temporary construction fence around the perimeter of the Use Area to protect visitors and employees of Range Park. 9. The School Board shall comply with the reasonable requirements imposed by the City's Department of Public Works for the removal of the Bridge over the City ROW. 10. If this Agreement terminates, is cancelled, or expires, regardless of default, the School Board agrees to immediately cease any and all construction activities on the Use Area, either directly or indirectly related to the demolition of the Bridge. The School Board agrees the City shall not be held financially responsible to the School Board or any third parties in connection with any actions taken in accordance herewith. This provision shall survive the termination of this Agreement. 11. Upon the earlier termination, cancellation, or expiration of this Agreement, for any reason, the School Board agrees that it shall leave the Use Area in the same or better condition than its condition on the Effective Date, including that there shall be no major alterations to the site other than the removal of the Bridge. 3 12. Additionally, the School Board shall be responsible for rectifying any unsafe or potentially unsafe condition on, under, or around the Use Area caused by the School Board or any of the School Board's agents or invitees, and/or remedying any uncompleted work either directly or indirectly associated with the School Board's temporary use of the Use Area, to a reasonable construction standard, such remedies being at the sole direction of the City. 13. The School Board acknowledges that nothing in this Agreement shall prejudice the City's right as a regulatory agency to impose conditions on approval of the work within the Use Area which are required by state, county, and/or city plat ordinances and/or zoning regulations, or are otherwise necessary to ensure the public health, safety, and welfare of the citizens of the City; nor shall the City be stopped from enforcing any of the terms of this Agreement. 14. The School Board acknowledges that the demolition and removal will be conducted in accordance with all applicable state, federal, and local laws and the terms and conditions set forth in this Agreement. 15. The School Board shall cause the demolition and removal of the Bridge to be conducted in accordance with the proposed demolition schedule attached hereto as Exhibit "C". In the event circumstances beyond the control of the School Board, the proposed demolition schedule may be modified by the School Board, subject to reasonable review and approval by the City. 16. The School Board shall not cause any liens or other encumbrances to be placed on the Use Area or on Range Park generally. 17. The School Board agrees that if it does not comply with any of the provisions or obligations contained in this Agreement, it will be in default. If default occurs, The School Board agrees that the City may, aside from any other remedies available to it, cancel/terminate this Agreement if the violation and/or default is not cured within thirty (30) days from receipt of written notice from the City of such violation and/or default. The City agrees that if it does not comply with any of the provisions or obligations contained in this Agreement, it will be in default. If default occurs, the City agrees that the School Board may, aside from any other remedies available to it, cancel/terminate this Agreement if the violation 4 and/or default is not cured within thirty (30) days from receipt of written notice from the School Board of such violation and/or default. 18. Subject to the limitations and provisions set forth in Section 768.28, Florida Statutes, the School Board shall, at all times during the term of this Agreement (at the School Board's own expense), indemnify, protect, , release, and hold the City, its officers, officials, employees, agents, representatives, and servants (collectively, the "Indemnitees") harmless from and against all claims, damages, liabilities, and losses, including but not limited to injury to persons or property, incurred by any and all of the Indemnitees in relation to the School Board's temporary use and activities on Range Park, incurred to anyone on, under, or around Range Park, as a result of actions or omissions taken by the School Board and their respective agents, employees, representatives, contractors, sub- contractors, or consultants performing any Improvements and/or activities on behalf of the School Board. The School Board hereby voluntarily and knowingly waives any and all claims against the Indemnitees for personal injuries or property damages sustained by the School Board, and their respective agents, employees, representatives, contractors, sub -contractors, or consultants arising out of or related to the activities undertaken by the School Board and their respective agents, employees, representatives, contractors, sub -contractors, or consultants upon Range Park, or in connection with the demolition proposed or in connection therewith. This indemnity and hold harmless provision shall commence on the Effective Date and shall survive the termination of this Agreement. Nothing in this Agreement is intended to operate as a waiver of either Parry's sovereign immunity. 19. The School Board maintains a self -insured program for general liability, auto and workers' compensation in accordance and subject to the [imitations and provisions as set forth in Section 768.28 of the Florida Statutes. At all times during the term of this Agreement, the School Board shall require its contractors and subcontractors doing work in the Use Area, as applicable, to maintain insurance coverages during the Project in the amount listed in Exhibit "B" attached hereto and made a part hereof, as approved by the Department of Risk Management of the City. 20. The School Board acknowledges it is proceeding at its own risk and acknowledges that it will not make a vested / property rights claim or other cause of action arising or accruing by virtue of this Agreement, other provisions of the City Charter, City Code, Miami21 Code, or any other Federal, State, County, or City Law, Rule, Regulation, governmental approval or governmental denial of any building or development perrnit or similar decision. The School Board acknowledges and 5 agrees that it has no recourse, redress, claim, cause of action, or remedy in law or in equity, in contract or in tort, or otherwise, against the City, its officers, officials, employees and assigns if the City decides that the uses proposed are not in the City's best interests or in the best interests of the general health, safety, welfare, and betterment of the public, or if the uses are not approved. 21. The School Board acknowledges that the City reserves the right to evaluate all applications for building permits for compliance with all existing laws, ordinances, and regulations controlling the issuance of building permits for construction within the City, as well as the terms and conditions of this Agreement. 22. Handling of Hazardous Materials. The School Board 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 and administrative actions and orders related to protection of the environment ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, analysis, generation, storage, disposal or transportation of any fuel, oils, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, infectious waste, or other hazardous, toxic, 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 School Board 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 Range Park, the Use Area, or any other area utilized for the uses required for the School Board's use or placement of any Hazardous Materials in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Subject to the limitations of Section 768.28, Florida Statutes, the School Board shall, at its sole cost and expense, be responsible for performing any removal, remediation, cleanup or restoration required as a result of its activities on, under or about Range Park or any other area utilized for the proposed uses. Upon termination or expiration of this Agreement, The School Board shall, at its sole cost and expense, cause all Hazardous Materials which are in storage devices placed on, under or about the portion of Range Park utilized for the Project by the School Board or its respective employees, officers, agents, contractors or customers or at any such person's directions to be removed from such property and 6 transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. These requirements shall survive the expiration of this Agreement. 23. This Agreement shall be binding upon the School Board and also upon their respective successors in interest or assigns. 24. Any notice, request, demand, approval or consent given or required to be given under this Agreement shall be in writing and shall be deemed as having been given when dispatched by (1) United States registered or certified mail (return receipt requested), postage prepaid, (2) hand delivery, (3) Federal Express or other comparable overnight mail service, (4) telephone facsimile transmission with transmission receipt, or (5) electronic mail, to the other Parties at the address stated below or at the last change of address given by the Party to be notified as herein specified. As to the School Board: With a copy to: With a copy to: As to City: The School Board of Miami -Dade County, Florida c/o Superintendent of Schools School Board Administration Building 1450 NE 2"d Avenue, Room 912 Miami, FL 33I32 Fax: 305-995-1488 Miami -Dade County Public Schools Planning, Design and Sustainability Attn: Deputy Chief Facilities and Eco- Sustainability Officer 1450 NE 2nd Avenue, Room 525 Miami, FL 33132 Fax: 305-995-4760 E-mail: arijo@dadeschools.net The School Board of Miami -Dade County, Florida School Board Attorney's Office 1450 NE 2"d Avenue, #400 Miami, FL 33132 Attn: School Board Attorney Fax: 305-995-1412 Email: Walter.Harvey@dadeschools.net and ACraft@dadeschools.net City Manager City of Miami 444 SW 2"d Avenue, 10th Floor Miami, FL 33130 E-mail: Djalfonsocrmiamigov.com 7 With a copy to: Director, Department of Real Estate and Asset Management City of Miami 444 SW 2"d Avenue, 3rd Floor Miami, FL 33130 Fax:305-400-5197 E-mail: Drotenberg@miamigov.com City Attorney City of Miami 444 SW 2"d Avenue, 9'11 Floor Miami, FL 33130 Fax:305-416-1801 E-mail: Vmendez@miamigov.com 25. This Agreement constitutes the entire agreement between the City and the School Board, with respect to the specific subject matter hereof and its temporary nature, and supersedes all prior negotiations, agreements, understandings, and arrangements, both oral and written, between the City and the School Board concerning the demolition of the Bridge. This Agreement may not be modified in any way, except by a written instrument executed by the City and the School Board. 26. The invalidity of any one or more of the words, phrases, sentences, clauses, or sections contained in this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any part hereof, all of which are inserted conditionally on their being valid in law. In the event that any one or more of the words, phrases, sentences, clauses, or sections contained in this Agreement shall be declared invalid by a court of competent jurisdiction, then, any in any such event, this Agreement shall be construed as if such invalid word or words, phrase or phrases, sentence or sentences, clauses or clauses, or section or sections had not been inserted. 27. The waiver by the City or the School Board of a breach or violation of any term or provision of this Agreement by any of the other parties shall not operate nor be construed as a waiver of any subsequent breach or violation of any provision of this Agreement or of any other right or remedy. 28. This Agreement shall be construed and enforced in accordance to the laws of the State of Florida, and venue for any litigation hereunder shall be in the Circuit Court in Miami -Dade County, Florida. 29. In the event that it becomes necessary for the City to institute legal proceedings to enforce or interpret any or all of the provisions of this Agreement, each party shall be responsible to pay their 8 own court costs and attorneys' fees through all levels of court processes, including any and all appeals. 30. Each party hereby irrevocably waives its rights to trial by jury in any action or proceeding arising out of this agreement or the transactions relating to its subject matter. 31. The Parties acknowledge that they have sought and received whatever competent advice and counsel was necessary for them to form a full and complete understanding of all rights and obligations herein and that the preparation of this Agreement has been their joint effort. The language agreed to express their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against any one of the Parties. 32. For purposes of this Agreement, the Superintendent of Schools or his/her designee shall be the party designated by the School Board to grant or deny any and all approvals required by this Agreement relating to the School Board access to and work within the Use Area, including modifying the demolition schedule, modifying the hours of operation, or any other operational issues related to the Project. In addition to the above, the Superintendent of Schools shall also be the party designated by the School Board to grant or deny any approvals required by this Agreement, including without limitation, amending any of the exhibits to the Agreement, placing the City in default, and renewing, extending, canceling or terminating the Agreement. 33. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be an original; however, all such counterparts together shall constitute, but one and the same instrument. Signature and acknowledgments pages, if any, may be detached from the counterparts and attached to a single copy of this document to physically form one document. [Signature pages on following page] 9 IN WITNESS WHEREOF, the School Board and the City have caused these presents to be executed on and signed in its name by its proper officials, the day and year first set forth above. Signed, Sealed and Delivered WITNESSES AS TO THE SCHOOL BOARD: Print Name: Print Name: THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA Alberto M. Carvalho Superintendent of Schools Date: TO THE SCHOOL BOARD: APPROVED RECOMMENDED: AS TO TREASURY MANAGEMENT ISSUES: Office of Treasury Management Jaime G. Torrens Date: Chief Facilities Officer Date: TO THE SCHOOL BOARD: APPROVED AS TO FORM AND LEGAL SUFFICIENCY: School Board Attorney Date: APPROVED AS TO RISK MANAGEMENT ISSUES : Office of Risk and Benefits Management Date: 10 WITNESSES AS TO THE CITY: CITY OF MIAMI, a Florida municipal corporation Print Name: Date: Print Name: ATTEST: Todd B. Hannon City Clerk Date: Daniel J. Alfonso City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez Anne -Marie Sharpe City Attorney Risk Management Director Date: Date: EXHIBIT "A" SKETCH OF TEMPORARY USE AREA [TO BE PROVIDED PRIOR TO EXECUTION] 12 EXHIBIT "B" INSURANCE REQUIREMENTS FOR SCHOOL BOARD'S CONTRACTORS AND SUBCONTRACTORS I. Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required City of Miami listed as an additional insured Contingent Liability & Contractual Liability Premises & Operations Liability Primary Insurance Clause Endorsement Explosion, Collapse, and Underground Hazard ll. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Liability (Excess Follow Form) A. Limits of Liability Each Occurrence $1,000,000 Policy Aggregate $1,000,000 The City of Miami listed as an additional insured Umbrella is excess follow form over all applicable liability policies Contained herein The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no Tess than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 14 EXHIBIT "C" PROPOSED DEMOLITION SCHEDULE [TO BE PROVIDED PRIOR TO EXECUTION] 15