HomeMy WebLinkAboutExhibit AMEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is entered into this day of
, 2018 ("Effective Date"), by and between the Depaitinent of Off -Street Parking
a/k/a Miami Parking Authority ("MPA"), an agency and instrumentality of the City of Miami,
located at 40 N.W. 3rd Avenue, Miami, FL 33128, the City of Miami ("City"), a municipal
corporation of the State of Florida, located at 444 S.W. 2nd Avenue, Miami, FL 33130, and Skate
Free Inc., a Florida not for profit corporation, located at 1035 N Miami Avenue, 4th Floor Desk
1D, Miami, Florida 33136 ("Skate Free"). The MPA, the City and Skate Free are collectively
referred herein to as the "Parties."
RECITALS
WHEREAS, the MPA has entered into an Airspace Agreement, as amended, with the
Florida Department of Transportation ("FDOT") for certain property located under the right-of-
way of Interstate Highway System I-95 (hereinafter referred to as "Lot 11") as more fully
described in Exhibit "A", attached hereto and made a part hereof ("Airspace Agreement"); and
WHEREAS, in accordance with the Airspace Agreement, the MPA is authorized to
sublease Lot 11 to a third party for use as a public skateboard facility and park ("Skate Plaza");
and
WHEREAS, the Skate Plaza is a project envisioned by Skate Free where Lot 11 will be
converted into a mixed use skate park and green space totaling approximately 30,000 square feet
with an approximate total cost of construction of One Million Two Hundred Thousand Dollars
($1,200,000.00); and
WHEREAS, on April 28, 2016, the City Commission authorized the City to contribute
approximately Six Hundred Thousand Dollars ($600,000.00) for the funding of the Skate Plaza;
and
WHEREAS, Skate Free and Nicolas Katz, its co-founder, will also contribute
approximately Six Hundred Thousand Dollars ($600,000.00) for the funding of the Skate Plaza;
and
WHEREAS, the Parties wish to enter into this MOU to allow for the construction and
development of a Skate Plaza on Lot 11; and
WHEREAS, this Agreement furthers the purpose of making the most efficient use of the
City' s and MPA's powers by cooperating on a basis of mutual benefit and thereby improving Lot
11 with the Skate Plaza in a manner that will maximize benefits to the City and the MPA as well
as the overall welfare and economic wellbeing of the City; and
WHEREAS, nothing in this MOU, expressed or implied, is intended to (a) confer upon any
entity or person, other than the expressed parties herein, any rights or remedies under or by reason
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of this MOU as a third -party beneficiary, or otherwise; or (b) authorize anyone not a party to this
MOU to maintain an action pursuant to or based upon this MOU.
NOW THEREFORE, in consideration of the promises and covenants contained herein the
parties agree:
1. Purpose. The purpose of this MOU is to ensure the funding and construction of
the Skate Plaza at Lot 11. Said construction shall comply with the Airspace Agreement, as
amended, entered between the MPA and FDOT.
2. City's Contribution. The City hereby agrees that no later than thirty (30) days
following the Effective Date of this MOU, it will contribute to the MPA the amount of Six Hundred
Thousand Dollars ($600,000.00) (the "City's Contribution") to be used in the construction of
Skate Plaza in accordance with the terms of this MOU.
3. Skate Free's Contribution. Skate Free hereby agrees to make a contribution in the
amount of Six Hundred Thousand Dollars ($600,000.00) (the "Skate Free Contribution") to be
used in the construction of Skate Plaza in accordance with the terms of this MOU.
4. MPA's Responsibilities. The Chief Executive Officer of the MPA shall have the
express authority to disperse the City's Contribution in accordance with the terms of this MOU
and the following payment schedule and installments:
i. $10,000.00 upon the MPA's receipt of the City's Contribution.
ii. $60,000.00 two (2) weeks prior to start date for mobilization.
iii. $120,000.00 at the end of the second month of construction.
iv. $120,000.00 at the end of the third month of construction.
v. $120,000.00 at the end of the fourth month of construction.
vi. $170,000.00 upon issuance of Certificate of Occupancy (CO) for Skate Plaza.
The costs associated with any additional expenses beyond the City's
Contribution shall be borne by Skate Free.
5. Procedure for Disbursement. No later than ten (10) days following the date that
the MPA receives notice from Skate Free that the applicable event has taken place, MPA shall
disburse the City' s Contribution, in accordance with the payment schedule and installments listed
in Section 4 of this MOU, to Skate Free. If the MPA delivers written notice to Skate Free objecting
to the disbursement of the City' s Contribution, or any portion thereof, then MPA shall not disburse
the City' s Contribution, or any portion thereof, but shall hold it until (i) Skate Free and the MPA
reach an agreement with respect to the disbursement of the City' s Contribution or (ii) a court of
competent jurisdiction reaches a final determination of such issue.
6. Indemnification. Skate Free shall indemnify, defend and hold harmless the City, the
MPA, FDOT, the U.S. Department of Transportation Federal Highway Administration, and their
officials and employees, for claims (collectively referred to as "Indemnitees") and each of them
from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorneys'
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fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of
any person or damage to or destruction or loss of any property arising out of, resulting from, or in
connection with (i) the negligent performance or non-performance of the services contemplated
by this Agreement (whether active or passive) of Skate Free or its employees, contractors or
subcontractors (collectively referred to as "Skate Free") which is directly caused, in whole or in
part, by any act, omission, default or negligence (whether active or passive or in strict liability) of
the Indemnitees, or any of them, or (ii) the failure of Skate Free to comply materially with any of
the requirements herein, or the failure of Skate Free to conform to statutes, ordinances, or other
regulations or requirements of any governmental authority, local, federal or state, in connection
with the performance of this Agreement. Skate Free expressly agrees to indemnify, defend and
hold harmless the Indemnitees, or any of them, from and against all liabilities which may be
asserted by any employee or former employee of Skate Free, or any of its contractors or
subcontractors, as provided above, for which Skate Free' s liability to such employee or former
employee would otherwise be limited to payments under the state's Workers' Compensation or
similar laws. Skate Free further agrees to indemnify, defend and hold harmless the Indemnitees
from and against (i) any and all Liabilities imposed on account of the violation of any law,
ordinance, order, rule, regulation, condition, or requirement, related directly to Skate Free' s
negligent performance under this Agreement, compliance with which is required by this
Agreement of Skate Free, and (ii) any and all claims, and/or suits for labor and materials furnished
by Skate Free or utilized in the performance of this Agreement or otherwise.
In the event that any third -party asserts a claim against Skate Free and/or the Indemnitees
for which Skate Free is defending the Indemnitees relating to the services provided, Skate Free
shall have the right to select its legal counsel for such defense, subject to the approval of the City,
which approval shall not be unreasonably withheld. It is understood and agreed that in the event
that counsel selected by Skate Free charges rates greater than those customarily paid by the City
at the time that such claim is asserted, the parties shall, in good faith, attempt to agree upon such
rates or upon an allocation of payment of such rates.
This section shall be interpreted to comply with Sections 725.06 and/or 725.08, Florida
Statutes. Skate Free' s obligations to indemnify, defend and hold harmless the Indemnitees shall
survive the termination of this Agreement.
Skate Free understands and agrees that any and all liabilities regarding the use of any
contractor or subcontractor for Services related to this Agreement shall be borne solely by Skate
Free throughout the duration of this Agreement and that this provision shall survive the termination
of this Agreement. Skate Free further understands that its contractors or subcontractors shall
provide the City with the very same insurance requirements as those Skate Free shall provide the
City.
Ten dollars ($10.00) of the payments made by the City constitute separate, distinct, and
independent consideration for the granting of this Indemnification, the receipt and sufficiency of
which is voluntarily and knowingly acknowledged by Skate Free.
7. Insurance. SkateFree shall require of its general contractor and subcontractors to obtain, and
maintain in force for the term of this Agreement, adequate insurance coverage deemed acceptable
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by the City as defined in the composite insurance exhibits included and made a part of this
Agreement.
8. Compliance with Laws. The parties shall comply with all applicable federal, state and local
laws, codes, ordinances, rules, and regulations in performing their respective duties,
responsibilities, and obligations pursuant with and relating to this MOU. The parties shall not
unlawfully discriminate in the performance of their respective duties under this MOU.
9. Dispute Resolution, Applicable Law. The parties shall resolve any disputes, controversies or
claims between them arising out of this MOU in accordance with the "Florida Governmental
Conflict Resolution Act", Chapter 164, Florida Statutes, as amended. This MOU shall be
governed by the laws of the State of Florida. Venue in any proceedings shall be in Miami -Dade
County, Florida and each party shall be responsible for its own attorneys' fees.
10. Entire Agreement, Amendments. This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings applicable to the
matters contained herein and the parties agree that there are no commitments, agreements, or
understandings concerning the subject matter of this agreement that are not contained in this
document. Accordingly, the parties agree that no deviation from the terms hereof shall be
predicated upon any prior representations or agreements, whether oral or written. No modification,
amendment or alteration in the terms or conditions contained herein shall be effective unless
contained in a written document prepared with the same or similar formality as this MOU and
executed by the parties.
11. Joint Preparation. The parties acknowledge that they have sought and received whatever
competent advice and counsel as was necessary for them to form a full and complete understanding
of all rights and obligations herein and that the preparation of this MOU has been their joint effort.
The language agreed to expresses their mutual intent and the resulting document shall not, solely
as a matter of judicial construction, be construed more severely against one of the parties by the
other.
12. Severance. In the event a portion of this MOU is found to be invalid by a court of competent
jurisdiction, the remaining provisions shall continue to be effective unless the City or MPA elect
to terminate this MOU. An election to terminate this MOU based upon this provision shall be
made within seven (7) days after the finding by the court becomes final.
13. Public Records; Maintenance of Records. This MOU shall be subject to Florida's Public
Records Laws, Chapter 119, Florida Statutes, as amended. The parties understand the broad nature
of these laws and agree to comply with Florida' s Public Records Laws, and laws relating to records
retention. MPA acknowledges and accepts the authority of the City to access the MPA's records,
and the obligation of the MPA to retain and to make those records available upon request, and in
accordance with all applicable laws. The MPA shall keep records to show its compliance with this
MOU. In addition, the MPA's contractors and subcontractors must make available, upon the
City' s request, any books, documents, papers, and records which are directly pertinent to this
specific MOU for the purpose of making audits, examinations, excerpts, and transcriptions
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available. Any service contractors will comply with Florida Statute 119.0701, as amended and as
applicable, which law will be referenced in any such service contracts.
14. Default. If either party fails to comply with any term or condition of this MOU, or fails to
perform any of its obligations hereunder, then that party shall be in default. Upon the occurrence
of a default hereunder, the non -defaulting party, in addition to all remedies available to it by law,
may immediately, upon written notice to the other party, terminate this MOU.
15. Miscellaneous provisions.
a. Title and paragraph headings are for convenient reference and are not a part
of this MOU.
b. No waiver or breach of any provision of this MOU shall constitute a waiver
of any subsequent breach of the same or any other provision hereof, and no
waiver shall be effective unless made in writing.
Any notice provided pursuant to the terms and provisions hereof shall be deemed to be
delivered when sent by hand delivery, delivery service or by certified mail, return receipt
requested, postage prepaid and received by the addressee. Notices shall be sent to:
If to the City:
With copies to:
If to the MPA:
With a copy to:
Emilio T. Gonzalez
City Manager
Miami Riverside Center
444 S.W. 2nd Avenue, 10th Floor
Miami, Florida 33130
Victoria Mendez
City Attorney
Office of the City Attorney
Miami Riverside Center
444 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
Arthur Noriega
Chief Executive Officer
Miami Parking Authority
40 N.W. 3rd Avenue
Miami, Florida 33133
Alejandra Argudin
Chief Operations Officer
Miami Parking Authority
40 N.W. 3rd Avenue
Miami, Florida 33133
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If to Skate Free:
Roland C. Galdos, Esq.
Senior Executive Adviser
Miami Parking Authority
40 N.W. 3rd Avenue
Miami, Florida 33133
Nicolas Katz
Secretary
Skate Free, Inc.
1035 N Miami Avenue, 4d' Floor Desk 1D
Miami, Florida 33136
IN WITNESS WHEREOF, the parties have caused this MOU to be executed by their
respective and duly authorized officers the day and year first above written.
CITY OF MIAMI,
ATTEST: a municipal corporation of the State of Florida
By: By:
Todd B. Hannon
City Clerk
ATTEST:
Emilio T. Gonzalez
City Manager
DEPARTMENT OF OFF-STREET PARKING
d/b/a MIAMI PARKING AUTHORITY,
an agency and instrumentality of the City of Miami
By: By:
Arthur Noriega
Chief Executive Officer
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SKATE FREE, INC.
ATTEST: a Florida not for profit corporation
By: By:
Nicolas Katz
Secretary
APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE
AND CORRECTNESS: REQUIREMENTS:
By: By:
Victoria Mendez
City Attorney
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Ann -Marie Sharpe
Risk Management Department Director
23 CFR, Part 710
EXHIBIT "A"
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
AIRSPACE AGREEMENT
ITEM/SEGMENT NO.:, g515601
MANAGING DISTRICT: Slx
F.A.P. NO.: J-95-1 (69)2
575-060-32
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STATE ROAD NO.: 9A (1-95)
COUNTY: Miami -Dade
PARCEL NO,: 622 MPA Lot 11
•THIS AGREEMENT, made this day of , 201.7 ,1 , between
Miami Parking Authority. at 40 N.W, 3'd Street. Suite 1103, Miami. FI. 6,3128
(Lessee) and the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (Department), an agency of the State of Florida
(State).
WITNESSETH:
WHEREAS, the Department may convey a leasehold in the name of the State, in any land, buildings, or other property, real
or personal, acquired under Section 337.25, Florida Statutes; and
WHEREAS, the United States Department of Transportation, Federal Highway Administration (FHWA), requires any use of
airspace above, andlor below the highway's established gradeline, lying within the approved right of way limits on a Federal Aid
System, to be accomplished pursuant to an airspace agreement in accordance with 23 CFR, Part 710, and
WHEREAS, the Department has acquired sufficient legal right, title, and interest in the right of way of Interstate Highway
System 1-95
which includes the property described in 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 the gradeline of the property described in
Exhibit "A", attached and made a part hereof for the following purpose: Skateboard Facility
WHEREAS, the proposed use will not impair the full use and safety of the highway, require or permit vehicular access to
such space directly from the established gradeline of said highway, or interfere with the free flow of traffic on said highway.
NOW, THEREFORE, in consideration of the premises made a part hereof, and 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 as follows:
1. Premises
The premises hereto are true and correct and form an integral part of this Agreement.
2. Term
The Department does hereby lease unto Lessee the airspace above or below gradeline of the property for a period of
Twenty Five (25) years beginning with the date of this Agreement. One renewal of this Agreement may be made for
another Twenty Five (25) year term . However, except for a public purpose
conveyance, such renewal may not exceed five years. Nothing herein shall be construed to in any way grant an interest in the property
lying below said airspace.
3. Rent
a. Lessee shall pay to the Department as rent each ❑ month ❑ quarter ❑ year on or before the first day of each rent
payment period, See addendum attached plus applicable sales tax. When this Agreement is terminated, any unearned rent and
sales tax payment shall be refunded to Lessee. However, no such refund shall be made where termination is due to Lessee's violation
of a term or condition of this Agreement.
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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: Florida Department of Transportation 1000 N.W. 111111 Avenue Room 6105 B Miami, Fi.
33172 Attention Property Management
d. Lessee shall be responsible for all state, county, city, and local taxes that may be assessed, including real property Taxes
and special assessments. In the event that no rent is specified herein, then it has been determined that either the use by Lessee is a
nonproprietary use by a governmental agency or an exception from the current fair market rental value requirement (23 U.S.C. Section
156) has been obtained for social, environmental, or economic mitigation (SEE) purposes. In the event that it should be determined at
any time that the use is not a nonproprietary use by a governmental agency or that the SEE exception does not apply or has been
revoked, Lessee agrees to pay, at that time, rent as 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 this Paragraph 3, for the
remaining term (including renewals) of this Agreement.
e. My installment of rent not received within ten (10) days after the due date shall bear interest at the highest rate allowed by
law from the due date thereof, per Section 55.03(1), Florida Statutes. This provision shall not obligate the Department to accept late
rent payments or provide Lessee a grace period.
4. Use, Occupancy. 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: Skateboard Facility
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 features of the use of the airspace in relation to the highway facility are set forth in composite Exhibit "B"
attached hereto and by this reference made a part hereof. In addition, said composite Exhibit "B" also contains a three-dimensional
description of the space to be used, unless the use is of a surface area beneath an elevated highway structure or adjacent to a highway
roadway for recreation, public park, beautification, parking of motor vehicles, public mass transit facilities, or other similar uses, in which
case, a metes and bounds description of the surface area, together with appropriate plans or cross sections clearly defining the vertical
use limits, may be substituted for 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
"B" shall require prior written approval from the appropriate District Secretary of the Department, subject to concurrence by the FHWA.
e. The Department, through its duly authorized representatives, employees, and contractors, and any authorized FHWA
representative, may enter the facility at any time 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, remediation, and
any other action which is reasonable and necessary to conduct an environmental assessment or to abate an environmental hazard.
f. Lessee, at Lessee's sole cost and expense, shall maintain the facility to occupy the airspace so as to assure that the
structures and the area within the highway right of way boundaries will be kept in good condition, both as to safety and appearance.
Such maintenance will be accomplished in a manner so as to cause no unreasonable interference with the highway use. In the event
that Lessee fails to so maintain the facility, the Department, through its duly authorized representatives, employees, and contractors,
may enter the facility to perform such work, and the cost thereof shall be chargeable to the Lessee and shall be immediately due and
payable to the Department upon the performance of such work.
g. Portable or temporary advertising signs are prohibited.
h. The design, occupancy, and use of the airspace shall not adversely affect the use, safety, appearance, or enjoyment of the
highway by smoke, fumes, vapors, odors, droppings, or any other objectionable discharges or emissions, or nuisances of any kind
therefrom.
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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 FHWA and
subject to both Department and FHWA approval.
j. The proposed use shall not cause or allow any changes in the existing drainage on the property under the airspace.
k. Lessee shall not occupy, use, permit, or suffer the airspace, the property, the facility, or any part thereof to 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 a nuisance of any kind, nor for any purpose or in any way in violation of any
present or future federal, state, or local laws, orders, directions, ordinances, or regulations.
1. Any activities in any way involving hazardous materials or substances of any kind whatsoever, either as those terms may be
defined under any state or federal 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 remediation that maybe necessary, as determined by the
Department, Similarly, if any contamination either spread to or was released onto adjoining property as a result of Lessee's use of the
airspace under lease, the Lessee shall be held similarly responsible. The Lessee shall indemnify, defend, and hold harmless the
Department from any claim, loss, damage, cost, charge, or expense arising out of any such contamination.
m. Existing utilities and all corresponding easements shall remain in prate and Lessee shall not disturb or interfere with the
same.
5. Indemnification. (select applicable paragraph)
ja Lessee Is a Governmental Agency
To the extent provided by law, Lessee shall Indemnify, defend, and hold harmless the Department and all of its officers,
agents, and employees from any claim, loss, damage, cost, charge, or expense arising out of any act, error, omission, or negligent act
by Lessee, its officers, agents, or employees, during the performance of the Agreement, except that neither Lessee, its agents, or its
employees will be liable under this paragraph for any claim, loss, damage, 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 the performance of the Agreement.
When the Department receives a notice of claim for damages that may have been caused by Lessee in the performance of
services required under this Agreement, the Department will immediately forward the claim to Lessee. Lessee and the Department will
evaluate the claim and report their findings to each other within fourteen (14) working days and wilt jointly discuss options in defending
the claim. After reviewing the claim, the Department will determine whether to require the participation of 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 own expenses for the evaluation, settlement negotiations, and trial, if any.
Note: No longer required for local governments.
❑ Lessee is not a Governmental Agency
Lessee shall indemnify, defend, save, and hold harmless the Department, its agents, officers, and employees, from any
losses, fines, penalties, costs, damages, claims, demands, suits, and liabilities of any nature, including attorney's fees (Including
regulatory and appellate fees), arising out of or because of any acts, action, neglect, or omission by Lessee, or due to any accident,
happening, or occurrence on the leased property or arising in any manner from the exercise or attempted exercise of Lessee's rights
hereunder whether the same regards person or property of any nature whatsoever, regardless of the apportionment of negligence,
unless due to the sole negligence of the Department.
Lesee's obligation to indemnify, defend, and pay for the defense or at the Department's option, to participate, and to
associate with the Department in the defense and trial of any claim and any related settlement negotiations, shall be triggered by the
Lessor's notice of claim for indemnification to Lessee. Lessee's Inability to evaluate liability or its evaluation of liability shall not excuse
Lessee's duty to defend and indemnify within seven days after such notice by the Department is given by registered mail. Only an
adjudication or judgment after the highest appeal is exhausted specifically finding the Department solely negligent shall excuse
performance of this provision by Lessee. Lessee shall pay all costs and fees related to this obligation and its enforcement by the
Department. The Department's failure to notify Lessee of a claim shall not release Lessee of the above duty to defend.
Note: No longer required for local governments.
6. 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 all claims for injury and damage to persons and property, and for the loss of life
or property occurring In, on, or about the land arising 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 One Million Dollars ($ 1,000,000.00 ) for bodily injury or death to any one person or any number of persons in
any one occurrence and not less than One Million Dollars ($ 1,000,000.00 ) for property damage, or a combined
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coverage of not less than Two Million Dollars ($ 2,000,000.00 ). All such policies shall be issued by companies licensed
to do business in the State of Florida and all such policies shall contain a provision whereby the same cannot be canceled or modified
unless the Department is given at least sixty (60) days prior written notice of such cancellation or modification. Lessee shall provide
the Department certificates showing such insurance to be in place and showing the Department as additional insured under the
policies. If self -insured or under a risk management program, Lessee represents that such minimum coverage for liability will be
provided for the property.
7. Termination
a. This Agreement may be terminated by either party without cause upon See Adden. (30 ) days prior written notice to the
other party.
b. It is understood and agreed to by the Lessee that the Department reserves the right to terminate this Agreement
immediately without prior notice, in the event the Lessee violates any of the conditions of this Agreement and such violation is not
corrected within a reasonable time after written notice of noncompliance has been given. In the event the Agreement is terminated and
the Department deems it necessary to request the removal of the facility on the property, the removal shall be accomplished by the
Lessee in a manner prescribed by the Department at no cost to the Department or the FHWA.
c. The Lessee must notify the Department of its intention to renew this Agreement not later than thirty (30) 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 deliver the property to the Department, or its agents, in the condition
existing at the commencement 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 part thereof is requested by the Department, any such structures shall be
removed by the Lessee at Lessee's expense by midnight of the day of termination of this Agreement and the property restored as
nearly as practicable.
f. This Agreement is terminable by the Department in the event that the facility ceases to be used for its intended purpose or
is abandoned.
8. Eminent Domain
Lessee acknowledges and agrees that its relationship with the Department under this Agreement is one of landlord and tenant
and no other relationship either expressed or implied shall be deemed to apply to the parties under this Agreement. Termination of this
Agreement for any cause shall not be deemed a taking under any eminent domain or other law so as to entitle Lessee to compensation
for any interest suffered or lost 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 it might have for full compensation, or
damages of any sort, including special damages, severance damages, removal costs, or loss of business profits, resulting from
Lessee's loss of occupancy of the property specified in this Agreement, or any such rights, claims, or damages flowing from adjacent
properties owned or leased by Lessee as a result of Lessee's loss of occupancy of the property specified in this Agreement. Lessee
also hereby waives and relinquishes any legal rights and monetary claims which it might have for full compensation, or damages of any
sort as set out above, as a result of Lessee's loss of occupancy of the property, when any or all adjacent properties owned or leased by
Lessee are taken by eminent domain proceedings or sold under the threat thereof. This waiver and relinquishment applies whether this
Agreement is still in existence on the date of taking or sale or has been terminated prior thereto.
9. Miscellaneous
a. The airspace and Lessee's rights under this Agreement shall 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 (Title VI, Appendix "C") and 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 land
that (1) no person, on the ground of race, color, sex, or national origin shall be excluded from participation in, be denied the benefits of,
or be otherwise subjected to discrimination in the use of said property and facility; (2) that in connection with the construction of any
improvements on said property and facility and the furnishing of services thereon, no discrimination shall be practiced in the selection of
employees and contractors, by contractors; and (3) that the Lessee shall use the property and facility in compliance with all other
requirements imposed pursuant to 15 CFR Part 8, Subpart A.
575-080-32
RIGHT OF WAY
OGC -08/09
Page 5of7
2. That in the event of breach of any of the above covenants, the Department shall have the right to terminate this Agreement
and to re-enter and repossess said property and the facility thereon, and hold the same as if this Agreement had never been made 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
Florida, county or local governments, or other lawful authority whatsoever, affecting the land, property, and facility or appurtenances or
any part thereof, and of all insurance policies covering the property, [and, and facility, or any part thereof.
d. In addition to or in lieu of the terms and conditions contained herein, the provisions of any Addendum of even date herewith
which is identified to be a part hereof is hereby incorporated herein and made a part hereof by this reference. In the event of any
conflict between the terms and conditions hereof and the provisions of the Addendum(s), the provisions of the Addendum(s) shall
control, unless the provisions thereof are prohibited by law.
e. This Agreement constitutes the complete and final expression of the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings, or negotiations with respect thereto. Any provision hereof found to be unlawful or
unenforceable shall be severable and shall not affect the validity of the remaining portions hereof.
f. Lessee acknowledges that it has reviewed this Agreement, is familiar with its terms, and has had 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, or amendment of this Agreement or any of its conditions
or provisions shall be binding upon the Department or Lessee unless in writing and signed by both parties.
g. Lessee shall be solely responsible for al[ bills for electricity, lighting, power, gas, water, telephone, and telegraph
services, or any other utility er service used on the property. -
h. This Agreement shall be governed by the laws of the State of Florida, and any applicable laws of the United States of
America.
i. All 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 in writing to the Department.
575.060-32
RIGHT OF WAY
OGC -08/09
Page 6 of 7
By: ,� By:
District Secretary
Name: Art Noreiga Name: James Wolfe, P.E.
Title: Chief Executive Offi r Attest:
Attest: •
Name:
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above written.
STATE OF FLORIDA
Miami Parking Authority DEPARTMENT OF TRANSPORTATION
LESSEFQCompany Name, if applicable)
4'.
ty
61 4,,
e ale :5
Title: Executive Administrative Assistant
(Seal) Name/Title: Executive Secretary
Approved as to Farm
By:10 — AK
Name: rillirffir
Title: + (Aitornee
Approved as i+ 1 ci firemAl
By: �/
Name: Ann -Marie ' A
r Title:
nsuranc
orrectn
Director Risk Mane
ent De
Lega[ Review:
District Counsel
Name: Alicia Trujillo, Esa
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO AIRSPACE AGREEMENT
ITEM/SEGMENT NO.: 2515601
MANAGING DISTRICT: Six
F.A.P. No.: ]-95-1 (69)2
STATE ROAD NO.: 9A (1-95)
COUNTY: Miami -Dade
PARCEL: 622 MPA Lot 11
This is an Addendum to that certain Airspace Agreement ("Agreement") between the
Miami Parking Authority, Florida and the State of Florida Department of Transportation
dated the day of , 201/7:`3' Notwithstanding the provisions
contained in the Agreement, the following terms and conditions shall be deemed to be a
part thereof and incorporated into the Agreement. Where the terms of this Addendum
conflict with the provisions of the said Agreement, this Addendum shall control.
1. The Department desires to lease to Lessee the airspace above or below grade line of
the property described in Exhibit "A", attached and made a part hereof for the purpose of
providing skateboarding amenities for the benefit of the public and subject to the following
cond itions:
a) The primary property designation is and shall remain for transportation
purposes;
b) The lease of the property for the public purpose described above is
only temporary;
c) Upon termination of the lease term or termination under Paragraph 7 (a) of
the Airspace Agreement, the property shall revert to transportation use.
2. Paragraph 3. Rent is modified to include the following:
The Lessor has granted this Airspace Agreement at no consideration for the sole public
use as stated in Paragraph 1 herein. If Lessee's use of the property becomes a business-
like venture producing income and profit, Lessee shall be required to pay rent at estimated
fair market value to Lessor, and the parties agree that the Lease Agreement shall be
modified accordingly.
3. Paragraph 4. Use, Occupancy, and Maintenance.
Section 4 (c) of the Agreement is deleted and replaced as follows:
Any and all improvements made to the property must be approved in writing by the Lessor
prior to the construction or installation of such improvements. As part of the approval
process, Lessee must submit all signed and sealed technical documents such as plans,
site layouts, specifications and applicable calculations to the Lessor for review. Lessee's
design and improvements must be in compliance with Lessor's access and clearance
requirements with respect to the bridge substructure elements and appurtenances
thereto, and are further subject to the approval of the Lessor's Structures Maintenance
Administrator or Designee..
Page 1 of 4
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO AIRSPACE AGREEMENT
ITEM/SEGMENT NO.: 2615601
MANAGING DISTRICT: Six
F.A.P. No.: I-95-1 (69)2
STATE ROAD NO.:
COUNTY:
PARCEL:
9A (1-95)
Miami -Dade
622 MPA Lot 11
Additionally, the following provisions are incorporated into Paragraph 4:
The Department shall not be liable for any loss resulting from or damage to any
improvements, equipment, and personal property within the leased premises for the uses
authorized hereunder, including but not limited to, any recreational equipment related to
the skateboard facility, whether such losses or damages are due to failures of the bridge
components, caused by an act of God, or as a result of the uses authorized hereunder,
and Lessee hereby agrees to indemnify and hold the Department harmless from any such
lost or damage.
The Department will have access to the leased premises in order to perform routine and
emergency repairs and biannual routine bridge inspections. As of the date of this
Agreement, the Department has the following scheduled biannual inspections:
870453 1-95 NB Downtown and Miami River next inspection 12/16/17
870356 1-95 SB Downtown and Miami River next inspection 08124/18
870474 1-95 SB Ramp to SR 970 EB next inspection 06/16/17
870556 SR 970 Ramp to 1-95 NB next inspection 11/14/18
Thereafter, the Department shall provide a 30 day notice to Lessee of scheduled biannual
inspections, and will include notice of any improvements or items that must be removed
by Lessee, at its sole cost and expense prior to such inspection. It is further understood
and agreed if the Department, in its sole discretion, requires emergency repair to the
bridge or related structure, the Department will attempt to notify Lessee of the removal of
any improvement or item required; if Lessee is unable to timely remove the same, the
Department shall undertake such removal, and shall not be held liable for any damage or
loss to such improvement or item, and furthermore shall not be required to reinstall or
repair same.
In the event, that the leased premises is secured by an approved fence or otherwise,
Lessee shall provide key access to the Department.
Any component of the leased area that conflicts with any future or proposed
improvements to the Lessor's transportation facility, roadway, structure or related
transportation objectives will be removed by Lessee, at its sole cost and expense, within
30 days' notice to Lessee, and Lessee shall restore or repair the leased premises to its
previous condition at the sole cost and expense.
No component of the bridge structure, appurtenances and or attachments thereto will be
used as a component of the skateboard facility or any other activities described in Section
4, whether by voluntary or involuntary actions construed at the time of design or
Page 2 of 4
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO AIRSPACE AGREEMENT
ITEM/SEGMENT NO.: 2515601
MANAGING DISTRICT: Six
F.A.P. No.: 1-95-1 (69)2
STATE ROAD NO.:
COUNTY:
PARCEL:
9A (I-95)
Miami -Dade
622 MPA Lot 11
thereafter. The Department will not allow any permanent structure (fixed) under the
bridge. There should be a minimum clearance of 10 ft. around all bridge columns and a
clear path to access these columns for inspection and maintenance at all times.
Any unauthorized use of the lease area will be immediately addressed through additional
controls at the sole expense of the Lessee. Whenever necessary for the Lessor to make
urgentinspection or repairs to the transportation facility, the Lessee will be required to
relocate any items that interfere with the necessary inspection/repairs within 24 hours of
notice to Lessee, at Lessee's sole expense.
4. Paragraph 7 Termination Section a. is modified to include the following:
Lessor agrees not to terminate this Agreement for a period of 24 calendar months from
the commencement date of this Agreement, unless Lessee shall be in breach of any term,
of the Airspace Agreement, as modified in this Addendum, and Lessee fails to rectify such
breach after due notice from Lessor during the time period allowed for rectification of such
breach. Lessor may require a 30 day termination or sooner in the event of an operation
emergency to support a catastrophic event or incident of unexpected operational or safety
reasons. Lessor shall inspect the leased area in the aftermath of an emergency to
determine the lease parcel is safe and provide notice to the Lessee that this Agreement
shall reinstate. At the conclusion of such 24-month period, the Lease Agreement may be
terminated in accordance with the terms of Section 9(a) of the Lease Agreement.
5. Paragraph 9. Miscellaneous, Section a. is modified to include the following:
Lessee may sublet the premises to a third party for the purpose of continued use as a
public skateboard facility, subject to Lessee's own regulations, guidelines and compliance
with local ordinance or other regulation, including permit requirements, that may be
applicable for such recreational facilities. The period of the Sublease shall not extend
beyond the dates of this Airspace Agreement. Any Sublease shall incorporate Section 5
(Indemnification) and Section 5 ( Insurance), naming the Florida Department of
Transportation as Additional Insured in the amounts listed in Section 7 of this Airspace
Agreement. Provisions of the Sublease shall stipulate for the automatic and reciprocal
termination of the Sublease in the event that this Airspace Agreement is terminated for
any reason. Lessee shall submit to the Lessor the Sublease for written approval before
execution.
Page 3 of 4
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO USE AND OCCUPANCY AGREEMENT
ITEM/SEGMENT NO.: 2515601
MANAGING DISTRICT: Six
F.A.P. No.: I-95-1 i6912
STATE ROAD NO.:
COUNTY:
PARCEL:
9A (1-951
Miami -Dade
622 MPA Lot 11
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed, the day and year first above written.
STATE OF FLORIDA
Miami ParkingA thority DEPARTMENT OF TRANSPORTATION
LESSEE /
By: By:
Name:
Art Noreiqa
James Wolfe, P.E.
District Six Secretary
Title: Chief Executive Officer Attest:
Name/Title:
Exec. Secretary
op Attest: or _ 4411{ LEGAL REVIEW:
Name: Dorian Barrera
By:
Title: Executive Administrative Asst. Alicia Trujillo, Esq.
Approved as t
By:
Nam
Title:
Approved as t
By:
Name: Ann-Mrie Sharp
Title: Director, Risk Manage ent Dept.
District Chief Counsel
Page 4 of 4
i
LEGM
RIGHT OF WAY TINE
LIMITED ACCESS LINE
M - MONUMENT LINE
{PI- PLAT
S.R.- STATE ROAD
SF- SOUARE FEET
L/A - LIMITED ACCESS
R/W - RIGHT OF WAY
IPA - MIAMI PARKING AUTHORITY
FOOT - TRANSPORTATIONNT OF
SKETCHES AND LEGAL DESCRIPTIONS OF
FLORIDA DEPARTMENT OF TRANSPORTATION
PARCELS FOR AIR SPACE AGREEMENTS
FOR THE MIAMI PARKING AUTHORITY
IVIOINITY MAP)
Not to Scale
INDEx:
MPA PARCEL NO.
11
LEGAL 2
SKETCH 3
12 6 13
LEGALS 4.5
SKETCH - 6
14 8 19
LESKETCH S 798
16 8 17
LEGALS - 10-I1
SKETCH 12
33 8 36
LEGALS ----- -13-J4
SKETCH 15
34 8 38
LEOALS
SKETCH 16187
42
LEGAL 19
SKETCH
SHEET NUMBER
20
GENERAL NOTES
Reproductions of this map are not valid without the signature and original
raised seal of the Florida Licensed Surveyor and Mapper In responsible
charge.
- Lands shown hereon were not abstracted by this office for rights -of -way,
easements of record, ownership, abandonments, deed restrictions, or Murphy
Act Deeds. This information should be obtained through appropriate Title
verificcation.
of a
State Rood 9A Sectionns 87270 2sh425 and State Rood 970 (fon hreon ore bosed ongrmer l y Stv eaps ROod for
854i Section 87006.2501.
The aerial photogrophs shown here on ore In approximate relationship to
the Right of Way lines due to the lock of georeferencTng informotton.
Additions and/or deletions to survey mops, sketches or reports by ony party
other than the signing perty are prahibi•t4 c t; ithOut the written consent of
the signing portye, .;
spvo-,:
CI-rA .t .W. 'EU'SSEti ' D TE
PROFESSIONAL LAND .SIIRVEY.OR
FLORIDA-.'IF I. A
CERTTE• NO. 3858
ADD PARCELS 11.13
0.S.
0R/03/10
TAKE OUT PARCEL 34 0.S.
ADDED ITEM/SEO. n,S,
J $ rAp NO •
fiEY[51 ON BY QATE
124 1 /09
10/02 /09
FLORIDA DEPARTMENT OF TRANSPORTATION
SKETCHES 8 LEGAL DESCRIPTIONS - NOT A SURVEY
STATE ROAD 9A ii-95), and STATE ROAD 970
BY
DATE
DRAM
0. SUAREZ
R /24 /89
CHECKED R.HEISSELL9/23/09
PREPARED BY.FOOT DISTRICT VI
l�1 AMi DADE COUNTY
DATA SOURCE
ITEM/SEG. N0. 2515601 SECTIONS 87270
F.A.P. NO.1-95-1t69)2 87006
EXHIBIT "A"
LEGAL DESCRIPTION
MIAMI PARKING AUTHORITY LOT No. 1I
(FLORIDA DEPARNENT OF TRANSPORTATION PARCEL No.6221
Being a portion of Blocks 108N,109N,11214, and 113N, according to the MAP OF MIAMI, DADE
CO. FLA,, as recorded in Plat Book B, Page 41, lying in Section 37, Township 54 South, Range 41 East, all
in the City of Miami, Miami -Dade County, Florida, and being more particularly described as follows:
COMMENCE at the intersection of the monumented line of N.W. 2nd Street with the
monumented line of N.W. 2nd Avenue in the City of Miami; thence S 87'43'33" W along the
monumented line of said N.W. 2"d Street, a distance of 549.99 feet; thence S 02'16'36" E along the
monumented line of N. W.3rd Avenue, a distance of 120.00 feet to the intersection with the East Limited
Access Right -of -Way Line for State Road 9A0-95) and the POINT OF BEGINNING of the following
described parcel;
Thence S 19°54'48" E a distance of 287.48 feet to the intersection with a non -tangent curve
concave to the Northwest, having a Radius of 572.67 feet, the chord of which 'bears 5 81°19'21" W;
thence southwesterly along the arc of said curve a distance of 189.32 feet, through a central angle of
18°56'29"; thence N 17°21'17" W a distance of 138.38 feet to the intersection with a curve concave to
the Northeast, having a radius of 911.73 feet, the chord of which bears N 14°09'08" E; thence
Northwesterly along the arc of said curve a distance of 98.92' feet, through a central angle of 06°12'59";
thence 5 07'21'10" E a distance of 150.59 feet; thence N 87°42'44" E a distance of 165.00feet, thence
S 11°00'38" E a distance of 83.97 feet to the POINT OF BEGINNING.
Containing 69,800 Square Feet, more or less.
FLORIDA DEPART NT OF TRANSPORTATION
LEGAL DESCRIPTION FOR FOOT PARCEL 622
L
STATE ROAD NO= 9A - NIPA LOT I ! gi AM1 -DADE -CO€JNTY
BY
PATE
PREPARED Vs
FORT DISTRICT VI
DATA 9ou3ttEr
SEE GENERAL NOTES ON SHEET ONE
DRAW0.59AREZ
o7i2gn 0
I TEM/SEG. No. 25}5601 SEC ION8 727
F.A.F'. NO. 1.95-1 { 69 }2 -2425
SHEET 2 OF 20
Br
pAT
CHECKED n
fi.8U5s1
2 �.
s•`.
QC} 1 12 'N!
�s. PG.41 ;
•
2410'
SO' 'LP)! �
FLORIDA DEPARTMENT OF TRANSPORTATION
SKETCH TO ACCOMPANY LEGAL DESCRIPTION
STATE ROAD NO. 9A IM'A LOT If; M1AMI DAOE COUNTY
PREPARED BY' PROT DISTRICT VI
1 TE11I5EG.Aii 2 T5 i 1
DATA SUURCEI
SEE GENERAL NOTES ON SHEE
N 87270
F,A.P. N0.1-95-1169)2 -2425 SHEET 3 OF 20