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HomeMy WebLinkAboutExhibitSTATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 575-06033 LEASE AGREEMENT RIGHT OF WAY occ -oaros Page 1 of 5 ITEM/SEGMENT NO.: 2496040 MANAGING DISTRICT: Six F.A.P. NO.: NiA STATE ROAD NO.. 9_33 (NW 12 Avenue Bridge) COUNTY: Miami- Dade PARCEL NO.: 4454 THIS AGREEMENT, made this day of 12017 , by and between the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, (hereinafter called the Lessor), and CITY OF MIAMI, a munici al co oration of the State of Florida 444 S.W. 211 Avenue 31 floor, Miami Florida 33130 (hereinafter called the Lessee). WITNESSETH: In consideration of the mutual covenants contained herein, the parties agree as follows: 1. Property and Term. Lessor does hereby lease unto Lessee the property described in Exhibit "A", attached and made a pari hereof, for a term of ten years (10) beginning 8/1/2017 and ending 7/31/2027 . This Lease maybe renewed for an additional tenyears (10) term at Lessee's option, subject to the rent adjustment as provided in Paragraph 3 below. Lessee shall provide Lessor 120 days advanced written notice of its exercise of the renewal option. If Lessee holds over and remains in possession of the property after the expiration of the term specified in this Lease, or any renewals of such term, Lessee's tenancy shall be considered a tenancy at sufferance, subject to the same terms and conditions as herein contained in this Lease. This Lease is subject to all utilities in place and to the maintenance thereof as well as any other covenants, easements, or restrictions of record. This Lease shall be construed as a lease of only the interest, if any, of Lessor, and no warranty of title shall be deemed to be given herewith. 2. Use. The leased property shall be used solely for the purpose of Vehicular Parking If the property is used for any other purpose, Lessor shall have the option of immediately terminating this Lease. Lessee shall not permit any use of the property in any manner that would obstruct or interfere with any transportation facilities. Lessee will further use and occupy the leased property in a careful and proper manner, and not commit any waste thereon. Lessee will not cause, or allow to be caused, any nuisance or objectionable activity of any nature on the property. Lessee will not use or occupy said property for any unlawful purpose and will, at Lessee's sole cost and expense, conform to and obey any present or future ordinances and/or rules, regulations, requirements, and orders of governmental authorities or agencies respecting the use and occupation of the leased property. Any activities in any way involving hazardous materials or substances of any kind whatsoever, either as those terns 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 on the leased property is prohibited. Lessee shall be held responsible for the performance of and payment for any environmental remediation that may be necessary, as determined by the Lessor, within the leased property. If any contamination either spread to or was released onto adjoining property as a result of Lessee's use of the leased property, the Lessee shall be held similarly responsible. The Lessee shall indemnify, defend, and hold harmless the Lessor from any claim, loss, damage, costs, charge, or expense arising out of any such contamination. 3. Rent. Lessee shall pay to Lessor as rent, on or before the first day of each rent payment period, the sum of See Addendum plus applicable tax, for each See Addendum of the term. If this Lease is terminated prior to the end of any rent payment period, the unearned portion of any rent payment, less any other amounts that may be owed to Lessor, shall be refunded to Lessee. Lessee shall pay any and all state, county, city, and local taxes that may be due during the term hereof, including any real property taxes. Rent payments shall be made payable to the Florida Department of Transportation and shall be sent to Florida Department of Transportation, 1000 NW 111th Avenue, Room 6105-B, Miami, FL 33172 Attn: Property Management . Lessor reserves the right to review and adjust the rental fee biannually and at renewal to reflect market conditions. Any installment of rent not received within ten (10) days after the date due 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 Lessor to accept late rent payments or provide Lessee a grace period. 4. Improvements. No structures or improvements of any kind shall be placed upon the property without the prior written approval of the District Secretary for District SIX of Lessor. Any such structures or improvements shall be constructed in a good and workmanlike manner at Lessee's sole cost and expense. Subject to any landlord lien, any structures or improvements constructed by Lessee shall be removed by Lessee, at Lessee's sole cost and expense, by midnight on the day of termination of this 575-064-33 RIGHT OF WAY OOc -08M Page 2 of 5 Lease and the leased property restored as nearly as practical to its condition at the time this Lease is executed. Portable or temporary advertising signs are prohibited. Lessee shall perform, at the sole expense of Lessee, all work required in the preparation of the leased property for occupancy by Lessee, in the absence of any special provision herein contained to the contrary; and Lessee does hereby accept the leased property as now being in fit and tenantable condition for all purposes of Lessee, Lessor reserves the right to inspect the property and to require whatever adjustment to structures or improvements as Lessor, in its sole discretion, deems necessary. Any adjustments shall be done at Lessee's sole cost and expense. 5. Maintenance. Lessee shall keep and maintain the leased property and any building or other structure, now or hereafter erected thereon, in good and safe condition and repair at Lessee's own expense during the existence of this Lease, and shall keep the same free and clear of any and all grass, weeds, brush, and debris of any kind, so as to prevent the same from becoming dangerous, inflammable, or objectionable. Lessor shall have no duty to inspect or maintain any of the leased property or buildings, and other structures thereon, during the term of this Lease; however, Lessor shall have the right, upon twenty-four (24) hours notice to Lessee, to enter the leased property for purposes of inspection, including conducting an environmental assessment. Such assessment may include: surveying; sampling of building materials, soil, and groundwater; monitoring well installations; soil excavation; groundwater remediation; emergency asbestos abatement; operation and maintenance inspections; and, any other actions which may be reasonable and necessary, Lessors right of entry shall not obligate inspection of the property by Lessor, nor shall it relieve the Lessee of its duty to maintain the leased property. In the event of emergency due to a release or suspected release of hazardous waste on the property, Lessor shall have the right of immediate inspection, and the right, but not the obligation, to engage in remedial action, without notice, the sole cost and expense of which shall be the responsibility of the Lessee. 6.. IndernNfication. (select applicable paragraph) ® Lessee is a Governmental Agency To the extent provided by law, Lessee shall indemnify, defend, and hold harmless the Lessor 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 agents, or employees, during the performance or the Lease, except that neither Lessee, its officers, agents, or 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 Lessor or any of its officers, agents, or employees during the performance of the Lease. When the Lessor receives a notice of claim for damages that may have been caused by the Lessee, the Lessorwill immediately forward the claim to the Lessee. Lessee and the Lessor will evaluate the claim and report their findings to each other within fourteen (14) working days and will jointly discuss options in defending the claim- After reviewing the claim, the Lessor will determine whether to require the participation of Lessee in the defense of the claim or to require that Lessee defend the Lessor in such claim as described in this section. The Lessor'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 Lessor and Lessee will each pay its own expenses for the evaluation, settlement negotiations, and trial, if any. ❑ Lessee is not a Governmental Agency Lessee shall indemnify, defend, save, and hold harmless Lessor, its agent, 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 Lessor. Lessee's obligation to indemnify, defend and pay for the defenses or at Lessor's option, to participate, and to associate with the Lessor 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 Lessor is given by registered mail. Only an adjudication or judgment after the highest appeal is exhausted specifically finding the Lessor 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 Lessor. Lessor's failure to notify Lessee of claim shall not release Lessee of the above duty to defend. 7. Insurance. Lessee at its expense, shall maintain at all times during the term of this Lease, public liability insurance protecting Lessor 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 property 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 See Addendum ($ ) for bodily injury or death to any one person or any number of persons in any one occurrence and not less than See Addendum ($ ) for property damage, or a combined coverage of not less than See Addendum ($ ). 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 575-C6D 33 RIGHT OF WAY OGC -08/09 Page 3 of 5 canceled or modified unless Lessor is given at least sixty (60) days poor written notice of such cancellation or modification. Lessee shall provide Lessor certificates showing such insurance to be in place and showing Lessor 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 leased property. Lessor may require the amount of any public liability insurance to be maintained by Lessee be increased so that the amount thereof adequately protects Lessor's interest. Lessee further agrees that it shall during the full term of this Lease and at its own expense keep the leased property and any improvements thereon fully insured against loss or damage by fire and other casualty. Lessee also agrees that it shall during the full term of this Lease and at its own expense keep the contents and personal property located on the leased property fully insured against loss or damage by fire or other casualty and does hereby release and waive on behalf of itself and its insurer, by subrogation or otherwise, all claims against Lessor arising out of any fire or other casualty whether or not such fire or other casualty shall have resulted in whole or in part from the negligence of the Lessor, 8. Eminent Domain. Lessee acknowledges and agrees that its relationship with Lessor under this Lease is one of landlord and tenant and no other relationship either expressed or implied shall be deemed to apply to the parties under this Lease. Termination of this Lease 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 Lease, including any residual interest in the Lease, or any other facts or circumstances arising out of or in connection with this Lease, 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 leased property, or any such rights, claims, or damages Rowing from adjacent properties owned or leased by Lessee as a result of Lessee's loss of occupancy of the leased property. 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 leased 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 Lease is still in existence on the date of taking or sale; or has been terminated prior thereto. 9. Miscellaneous. a. This Lease may be terminated by Lessor immediately, without prior notice, upon default by Lessee hereunder, and may be terminated by either party, without cause upon thirty (30) days prior written notice to the other party. b. 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) shalt control, unless the provisions thereof are prohibited by law, c. Lessee acknowledges that it has reviewed this Lease, is familiar with its terms, and has had adequate opportunity to review this Lease with legal counsel of Lessee's choosing. Lessee has entered into this Lease freely and voluntarily. This Lease 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 the previous owner of the leased property and landlord of Lessee are merged in this Lease, which alone, fully and completely expresses the agreement between Lessee and Lessor with respect to the subject matter hereof. No modification, waiver, or amendment of this Lease or any of its conditions or provisions shall be binding upon Lessor or Lessee unless in writing and signed by both parties. d. Lessee shall not sublet the property or any pari thereof, nor assign this Lease, without the prior consent in writing of the Lessor; this Lease is being executed by Lessor upon the credit and reputation of Lessee. Acceptance by Lessor of rental from a third party shall not be considered as an assignment or sublease, nor shall it be deemed as constituting consent of Lessor to such an assignment or sublease. e. Lessee shall be solely responsible for all bills for electricity, lighting, power, gas, water, telephone, and telegraph services, or any other utility or service used on the property. f. This Lease shall be governed by the taws of the State of Florida, and any applicable laws of the United States of America. g_ Ali notices to Lessor shall be sent to the address for rent payments and all notices to Lessee shall be sent to: 444 SW 2nd Avenue, 3'd Floor Miami, Florida 33130 Attn: Mark Bums, Lease Manager 575-060-33 RIGHT OP WAV GGC -0mg Page 4 of 5 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above written. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION SIGNATORY PAGE TO FOLLOW By: Lessee (Company Name, if applicable) District Secretary BY: Print Name Title: Attest: _ Print Name Title: .lames Wolfe, P.E Print Name Attest: Name/Title: Exec. Secretary (SEAL) LEGAL. REVIEW: District Counsel Alicia Tru[ 1p Es_q Print Name "LESSEE" Executed by CITY OF MIAMI, a municipal corporation of the State of Florida By: Daniel J. Alfonso, City Manager Date: ATTEST: Todd B. Hannon, City Clerk APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Ann -Marie Sharpe, Director Risk Management Administrator 575-060-33 RIGHT OF WAY OGC -080 Page 5 o4 5 ADDENDUM TO LEASE AGREEMENT STATE OF FI.OIZIDA DEPARTMENT OF TRANSFORTA'IION Item/Seg No.: 2496040 Managing District: Six SR No.: 933 /NW 12' Ave Bridge County: Miami -Dade Parcel No.: 4454 This ADDENDUM dated this day of 2017 ("Addendum") amends the Lease Agreement between the City of Miami ("Lessee") at 444 S.W. 2nd Avenue, 101h Floor, Miami, Florida 33130 and the State of Florida Department of Transportation ("Lessor") at 1000 N.W. 111th Avenue, Miami, Florida 33172. In addition to the provisions contained in said Lease Agreement, the following terms and conditions shall be deemed to be part thereof pursuant to Section 9 (b) of said Lease Agreement. 2 3 4. This Lease Agreement supersedes all prior agreements and understandings (whether written or oral) between the Lessor and the Lessee, with respect to the leased premises. This Lease is for a term of ten (10) years, with the option to renew for an additional ten (10) years, subject to the terms and conditions herein. The leased premises ("Premises") are for the purpose of providing surface parking area, subject to the following: a. Primary Premises designation is and shall remain for transportation purposes; b. The lease of the Premises for the purpose described above is only temporary and shall not be construed or be included as part of the Lessee and/or any authorized Sub -lessee's development plans to meet any code or zoning regulations as required by any local government(s). c. Upon termination of the lease term or termination under Section 9(a) of the Lease Agreement, the Premises shall revert to transportation use. Section 3 of the Lease Agreement is modified to include the following: So long as the Premises are used for the parking purposes set forth in this Lease Agreement and the approved Sublease referenced below, the Premises shall be leased for no consideration during the first 10 -year term so long as the Sublease shall likewise be for no consideration during said time period. Thereafter, Lessor shall require Lessee to pay fifty percent (50%) based on the Premises' then current estimate of value for market rent as determined by a qualified estimator, which estimate shall be provided at the Lessee's sole cost and expense. Notwithstanding the foregoing, in the event that, prior to the termination of the initial 10 -year term, the Sub -lessee is required to make rental payments or other monetary contribution Page 1 of 5 5 C:1 7 ADDENDUM TO LEASE AGREEMENT STATE OF FLORIDA DEPAR"rmFNTOF TRANSPORTATION Item/Seg No.: 24966040 Managing District : Six SR No.: 933 /NW 12th Ave Bridge County: Miami -Dade Parcel No.: 4454 to Lessee for Sub -lessee' use of the Premises, then Lessee shall be required to pay to Lessor fifty percent (50%) of any such payment received from Sub -lessee. The parties agree that any such adjustments in rent shall be addressed via separate addendum to the Lease Agreement. Section 4 of the Lease Agreement is amended to include the following provisions: Any and all future improvements to the Premises must be approved (such approval not be unreasonably withheld) in writing by Lessor prior to construction or installation of such improvements, which shall be at the sole cost and expense of Lessee. In the event that Lessee constructs or installs any improvements on the Premises not previously authorized by Lessor, Lessee shall remove the same at its sole cost and expense within 30 days of receipt of notice from Lessor. Additionally, Lessee shall be responsible to restore the area to a same or similar condition as existed prior to the construction or installation of unauthorized improvements, at its sole cost and expense. It is understood and agreed that Lessee shall not be authorized to install or construct any improvements, permanent or otherwise, that conflict with Lessor's primary drainage/retention use and/or any future or proposed improvements required by Lessor for any transportation related use. In the event that, as a result of a transportation project, Lessor requires the removal of previously approved improvements on the Premises, Lessee shall remove same at its sole cost and expense by midnight on the day of termination of this Lease Agreement and the land restored to the same condition as existed prior to the author7zed placement of the improvements by Lessee on the Premises. At the end of the lease term, at Lessor's option, the approved improvements may either remain in place, or must be removed by Lessee and the Premises restored to its previously existing condition, all at Lessee's sole cost and expense. Section 5 of the Lease Agreement is amended to include the following provision: Lessor reserves the right to enter the Premises in an emergency without notice at any time. At all other times, the Lessor will give 48 hours' notice for routine maintenance, inspection or access for construction related to the Premises. Lessee will be responsible for any environmental contamination or damages which may result from its use or operations on the Premises. The following Sections of the Lease Agreement are hereby modified: Page 2 of 5 ADDENDUM TO LEASE AGREEMENT STATL Of: FLORIDA DEPARTMENT OF TNA.NSPOR1 Al ION Item/Seg No.: 2496040 Managing District : Six SR No.: 933 /NW 121" Ave Bridge County: Miami -Dade Parcel No.: 4454 Section 6: Lessee is a Governmental Agency, subject to the limitations as set forth in Section 768.28, Florida Statutes. Section 7: The Lessee maintains a self-insured program for general liability, automobile liability and workers compensation in accordance and subject to the limitation as set forth in section 768.28, Florida Statutes. 8. In addition to the foregoing, Paragraph 9 section (d) (Miscellaneous) of the Lease Agreement is amended to include the following provisions: Lessee may enter into a sublease with NKMIA LLC., a Delaware limited liability company whose mailing address is 3500 South DuPont Highway, Dover, DE 19901, for the purposes of constructing, maintaining, improving surface parking, and use of the same, in conjunction with Sub -lessee's operation of a school facility ("Sublease Agreement"). The Sublease Agreement shall provide that one (1) parking space shall be reserved for use by Lessor's bridge tender. The Sublease term shall commence no earlier than the Lease Agreement commencement date and shall terminate no later than the termination date of the Lease Agreement, and shall otherwise be co -terminus with the Lease Agreement, in accordance with the termination provisions thereof. The Sublease Agreement shall be subject and subordinate to this Lease Agreement. The Sublease Agreement must be submitted to Lessor for prior review and approval. Sub -lessee shall be solely responsible for all expenses related to the use of the Premises, including but not limited to, real estate property tax (if any), personal property tax, sale tax, special assessment tax, maintenance, payment for electricity, lighting, power, gas, water, telephone, electronic communication services, or any other utility or service used on Premises. The Sub -lessee shall be required to indemnify and hold harmless Lessor in accordance with Paragraph 6 of the Lease Agreement, as it applies to non- governmental entities. Sub -lessee shall further comply with Paragraph 5 of this Addendum. 9. Sub -lessee shall be required to comply with the following: Page 3 of 5 ADDENDUM TO LEASE AGREE:4IENT STAIL0F FLORIDA DEI'ARTMENTou"rRANSPORTATION Item/Seg No.: 2496040 Managing District : Six SR No.: 933 /NW 121" Ave Bridge County: Miami -Dade Parcel No.: 4454 Sub -lessee at its expense, shall maintain at all times during the Sub -lease Agreement term, public liability insurance protecting Lessor 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 property arising out of the act, negligence, omission, nonfeasance, or malfeasance of Sub -lessee, its employees, agents, contractors, customers, licensees, and invitees. Such insurance shall be carried in a minimum 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 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 Lessor is given at least sixty (60) days prior written notice of such cancellation or modification. Sub -lessee shall provide Lessor certificates showing such insurance to be in place and showing Lessor as additional insured under the policies. All other terms and conditions of the Lease Agreement shall remain unchanged and confirmed and ratified by Lessee and Lessor. Signatory Page Follows Below Page 4 of 5 ADDENDUM TO LEASE AGREEMENT STATE. OF FLORIDA DEPAK'rM[NT OF I'HANSPORTATION. Item/Seg No.: 2496040 Managing District : Six SR No.: 933 /NW 12th Ave Bridge County: Miami -Dade Parcel No.: 4454 IN WITNESS WHEREOF, the parties have executed this Addendum to the Lease Agreement as of this day of 2017. On behalf of Lessee CITY OF MIAMI M Attest: Daniel J. Alfonso, City Manager Todd B. Hannon City Clerk Approved as to Form and Correctness 0 Victoria Mendez City Attorney Approval as to Insurance Requirements: By - Ann -Marie Sharpe, Director Risk Management Department On behalf of Lessor STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION By: James Wolfe, P.E. District Secretary Attest Executive Secretary Page 5 of 5 LEGAL REVIEW: Alicia Trujillo, Esq. DistrictChiefCounsel EXHIBIT A' LEGAL CESCR!PTiON' Parcel located ie) Fordham's Subdivision Plat Bm(4-93. lying in Section 35: Township 153 South; Range 41 East as shown on the Florida Dtipartmc.nt of Transportation Right -of -Way Map for State Road 933 Section 8760-152..Southeast of the %� iarni Pier. under N'W' 12 Avenue Bridae. between NW 8 Terrace and the KamI River, Cit; of Miami, Miami -Dade County. Particularly described as: East portion of the Southeast parcel under the �""W 12 Avenue Bridge. Containing 22,770 square feet more or less. E Florida Department of Transportation District Six Item/Segment No.: 2496040 Sect/Job No.: 87085-3510 F.A.P, No.: N!A State Rd, No.: 933 County: Mian i -Dade ParceJ No,: 4454 Sheet i of 2 EXHIBIT "A" SKETCH OF LEGAL DESCRiPPON 'Miami River