Resolution 2023-32819RESOLUTION NO I� 2023-32819
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE
ADMINISTRATION TO NEGOTIATE A USE AND OCCUPANCY
AGREEMENT AND LEASE OF AIRSPACE OVER STATE ROAD
A1A/MACARTHUR CAUSEWAY WITH THE FLORIDA
DEPARTMENT OF TRANSPORTATION ("FDOT") IN
CONNECTION WITH THE 5TH STREET PEDESTRIAN BRIDGE
PROJECT; AND FURTHER, AUTHORIZING THE CITY MANAGER
AND CITY CLERK TO EXECUTE THE FINALIZED USE AND
OCCUPANCY AGREEMENT.
WHEREAS, on November 6, 2018, Miami Beach residents approved three ballot
questions authorizing the City to issue General Obligation Bonds ("G.O. Bonds") to fund
capital projects within the City. ; and
WHEREAS, among other City projects, an allocation was made towards the
creation of a 5th Street Pedestrian Bridge Project, to provide for a pedestrian bridge
over and across 5th Street and West Avenue, to connect the Baywalk south of 5th Street
with the area north of 5th Street (the "Pedestrian Bridge Project"); and
WHEREAS, the location of the proposed Pedestrian Bridge Project falls within
Florida Department of Transportation's (FDOT's) jurisdiction, which necessitates
obtaining a permit to construct the pedestrian bridge; and
WHEREAS, additionally, the United States Department of Transportation,
Federal Highway Administration (FHWA), requires any use of airspace above and/or
below the highway's established gradeline, lying within the approved right of way limits
on a Federal Aid System, to be accomplished pursuant to a Right-of-way Use and
Occupancy Agreement and lease of airspace in accordance with 23 CFR, Part 710 ("Use
and Occupancy Agreement"); and
WHEREAS, the Administration desires to request authorization to negotiate with
the FDOT a Use and Occupancy Agreement, a template of which is attached as
Attachment A to the Commission Memorandum accompanying this Resolution, which
Use and Occupancy Agreement will solely encompass the footprint of the Pedestrian
Bridge Project over State Road AIA/MacArthur Causeway; and
WHEREAS, the Administration further requests authorization for the City
Manager to execute such Use and Occupancy Agreement after the same is finalized;
and
WHEREAS, for the foregoing reasons, the Administration recommends that the
Mayor and City Commission adopt this Resolution.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby authorize the Administration to negotiate a Use and Occupancy
Agreement and Lease of Airspace over State Road A1A/MacCarthur Causeway with the
Florida Department of Transportation in connection with the 5t" Street Pedestrian Bridge
Project (the "Use and Occupancy Agreement"); and further, authorize the City Manager and
City Clerk to execute the finalized Use and Occupancy Agreement.
PASSED AND ADOPTED this /8
ATTEST:
OCT, 2 0 2023
Rafael E. Granado, City Clerk
2
day of 610Gv6t0r2023.
Da rl Gelber, Ma or
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
cv-�
City Attorney �
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Date
Resolutions - C7 AB
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: October 18, 2023
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,
AUTHORIZING THE ADMINISTRATION TO NEGOTIATE A USE AND OCCUPANCY AGREEMENT AND
LEASE OF AIRSPACE OVER STATE ROAD A1A/MACARTHUR CAUSEWAY WITH THE
FLORIDA DEPARTMENT OF TRANSPORTATION ("FDOT") IN CONNECTION WITH THE 5TH STREET
PEDESTRIAN BRIDGE PROJECT; AND FURTHER, AUTHORIZING THE CITY MANAGER AND CITY CLERK
TO EXECUTE THE FINALIZED USE AND OCCUPANCYAGREEMENT.
RECOMMENDATION
The Administration recommends approving the Resolution.
BACKGROUND/HISTORY
On November 6, 2018, Miami Beach residents approved three ballot questions authorizing the City to issue General Obligation
Bonds ("G.O. Bonds") to fund capital projects within the City. Among other City projects, an allocation was made towards the
creation of a 5th Street Pedestrian Bridge Project, to provide for a pedestrian bridge over and across 5th Street and West Avenue, to
connect the Baywalk south of 5th Street with the area north of 5th Street (the "Pedestrian Bridge Project").
The location of the proposed Pedestrian Bridge Projectfalls within Florida Department of Transportation's (FDOT's) jurisdiction,
which necessitates obtaining a permit to construct the pedestrian bridge.
Additionally, the United States Department of Transportation, Federal Highway Administration (FHWA), requires any use of airspace
above and/or below the highways established gradeline, lying within the approved right of way limits on a Federal Aid System, to be
accomplished pursuant to a Right-of-way Use and Occupancy Agreement and lease of airspace in accordance with 23 CFR, Part
710 ("Use and Occupancy Agreement').
The Administration desires to request authorization to negotiate with the FDOT a Use and Occupancy Agreement, a template of
which is attached as Attachment A hereto, which Use and Occupancy Agreement will solely encompass the footprint of the
Pedestrian Bridge Project over State Road AIA/MacArthur Causeway. The Administration further requests authorization for the City
Manager to execute such Use and Occupancy Agreement after the same is finalized.
SUPPORTING SURVEY DATA
Results from the 2022 Resident Survey related to the City's perception and satisfaction show an overall approval of 67.4%, and rated
the City as a good place to live.
FINANCIAL INFORMATION
No fiscal impact.
CONCLUSION
The Administration recommends approving the Resolution.
Applicable Area
South Beach
Is this a "Residents Right
to Know" item, pursuant to
City Code Section 2-14?
Yes
Does this item utilize G.O.
Bond Funds?
M
Strategic Connection
Prosperity - Market and promote Miami Beach as a world class arts, culture, and quality entertainment destination.
Legislative Tracking
RHir. Works
7
ATTACHMENTS:
Description
❑ Reso
❑ Attachment A (1)
❑ Attachment A (2)
11
STATE OF FLORIDA DEPARTMENT OF
TRANSPORTATIONADDENDUM TO USE AND OCCUPANCY
AGREEMENT
Item/Segment No.: 415230-1
Managing District: SIX (6)
F.A.P. No.:
State Road No.: AIA
County: Miami -Dade
Parcel No.: 7461
THIS ADDENDUM ("Addendum") made this day of , 2023
("Effective Date") is an addendum to that certain Use and Occupancy Agreement
dated day of , 2023 ("Agreement") made between the STATE OF
FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of the State of
Florida (the "Department") and [LESSEE NAME], a political subdivision of the State
of Florida ("Lessee") (collectively, the "Parties").
NOW, THEREFORE, the Partiesmutually agree as follows:
1. The recitals of the Agreement and this Addendum are true and correct and are
incorporated herein by reference and made a part hereof.
2. The third WHEREAS clause of the Recitals is hereby deleted in its entirety and
replaced with the following:
WHEREAS, the Department has sufficient legal right, title, and interest in the right-
of-way of [State Road_ No./Name] (the "State Road") which is part of the Federal Aid
System.
3. The fourth WHEREAS clause of the Recitals is hereby deleted in its entirety and
replaced with the following:
WHEREAS, the Department desires to lease to Lessee the airspace more fully and ,
three -dimensionally described in Exhibit "A" attached hereto and made a part hereof
(the "Premises") for the sole purpose of constructing and accessing, maintaining, and
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operating a [east-west/north-south] bridge over the State Road, including all
structures, improvements, and other personal property to be affixed or located thereon,
as more fully described in Exhibit `B" attached hereto and made a part hereof (the
"Bridge").
4. SECTION 1, PREMISES, is hereby deleted in its entirety and replaced with the
following:
The Premises consists of the airspace as shown in Exhibit "A" located at [location],
Miami -Dade County, Florida. Nothing herein shall be construed to grant any fee or
easement rights, title, or interest in any real property, or in airspace other than the
Premises described in Exhibit "A."
5. SECTION 2, TERM, is hereby deleted in its entirety and replaced with the
following:
The term of this Agreement shall be for a period of [ _ ] years from the Effective
Date unless earlier terminated in accordance with Section 7 of this Agreement
("Original Term"). Lessee may elect to renew this Agreement for another [ _ ] years
by notifying the Department of its intention to renew this Agreement not later than [
_ ] calendar 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.
6. SECTION 3, RENT, is hereby deleted in its entirety and replaced with the
following:
Given that the lease of the Premises is exclusively for public transportation use, no
consideration is to be paid to the Department by Lessee. Lessee shall be responsible
for any applicable state, county, city, and local taxes that may be assessed.
7. SECTION 4, USE, OCCUPANCY, AND MAINTENANCE is hereby deleted in its
entirety and replaced with the following:
a. The Premises shall be exclusively used by Lessee and/or its authorized contractors
and subcontractors for the sole purpose of accessing, maintaining, and operating the
Bridge. Any change in the authorized use of the Premises or revision in the design or
construction of the Bridge shall require prior written approval from the Department's
District Six Secretary, subject to concurrence by the FHWA.
b. The Department and FHWA, through their duly authorized agents, representatives,
employees, contractors, and subcontractors may enter the Premises at any time for the
12
purpose of inspection, maintenance, or reconstruction of the State Road 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. Lessee shall ensure vertical and horizontal access to the Department for
maintenance of the State Road and/or State facilities.
c. Lessee's sole cost and expense, shall be solely responsible for all maintenance of
the Bridge in accordance with the Maintenance Obligations attached hereto as Exhibit
"C" and is made a part of this Agreement. Lesse shall maintain the Bridge in such a
way to ensure the safety and integrity of the State Road, and such maintenance will be
accomplished in a manner so as not to impair the State Road or interfere with the free
and safe flow of traffic on the State Road.
d. The occupancy and use of the Premises shall not adversely affect the use, safety,
appearance, or enjoyment of the State Road by lights, sounds, wireless frequencies;
smoke, fumes, vapors, odors, droppings, or any other objectionable discharges, or
emissions, or nuisances of any kind therefrom.
e. 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 Premises or the State Road 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 Department. Similarly, if any contamination either
spread to or was released onto adjoining property as a result of Lessee's use of the
Premises under this Agreement, 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.
f. Existing utilities and/or all corresponding easements shall remain in place and
Lessee shall not disturb or interfere with the same.
g. The lease of the Premises is subject to all applicable permit requirements and any
other required agreements or approvals, and concurrences.
h. Portable or temporary advertising signs are prohibited.
8. SECTION 5, INDEMNIFICATION, is hereby deleted in its entirety and replaced
with the following:
13
a. 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, onexpense 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 this 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 will 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.
b. Lessee agrees to include the following indemnification in all contracts with
contractors, subcontractors, consultants, and/or subconsultants (each referred to as
"ENTITY for the purposes of the below indemnification) who perform work in the
Premises:
"To the extent provided by law, [ENTITY] shall indemnify, defend, and hold
harmless the [LESSEE], the State of Florida Department of Transportation (the
"Department"), and the Federal Highway Administration ("FHWA"), including the
officers, agents, and employees of the Department and FHWA, against any actions,
claims, or damages arising out of, relating to, or resulting from negligent or wrongful
act(s) of [ENTITY], or any of its officers, agents, or employees, acting within the
scope of their office or employment, in connection with the rights granted to or
exercised by [ENTITY].
The foregoing indemnification shall not constitute a waiver of the Department's or
[LESSEE]'s sovereign immunity beyond the limits set forth in Florida Statutes,
Section 768.28. Nor shall the same be construed to constitute agreement by [ENTITY]
to indemnify [LESSEE] for the negligent acts or omissions of [LESSEE], its officers,
agents, or. employees, or third parties. Nor shall the same be construed to constitute
agreement by [ENTITY] to indemnify the Department or FHWA for the negligent
14
acts or omissions of the Department, FHWA, and the officers, agents, or employees of
-the Department or FHWA, or third parties. This indemnification shall survive the
termination of this Agreement.
Prior to the commencement of any work, and at all renewal periods which occur prior
to final acceptance of the work, [LESSEE] shall be provided with an ACORD
Certificate of Liability Insurance as well as an Additional Insured Endorsement
naming [LESSEE], the Department, and FHWA as scheduled additional insureds.
[LESSEE] shall be notified in writing within ten (10) days of any cancellation, notice
of cancellation, lapse, renewal, or proposed change to any policy or coverage
described herein."
9. SECTION 6, INSURANCE, is hereby deleted in its entirety and replaced with the
following:
a. The Lessee shall provide Workers' Compensation Insurance in accordance with
Florida's Workers' Compensation law for all employees performing work in the
Premises. If subcontracting any of the work, ensure that the subcontractor(s) and
subconsultants have Workers' Compensation Insurance for their employees in
accordance with Florida's Workers' Compensation law. If using "leased employees"
or employees obtained through professional employer organizations ("PEO's"),
ensure that such employees are covered by Workers' Compensation insurance through
the PEO's or other leasing entities. Ensure that any equipment rental agreements that
include operators or other personnel who are employees of independent contractors,
sole proprietorships or partners are covered by insurance required under Florida's
Workers' Compensation law.
b. If the Lessee elects to self -perform work in the Premises, and such self -
performance is approved by the Department in accordance with the terms of this
Agreement, the Lessee may self -insure and proof of self-insurance shall be provided
to the Department. If the Lessee elects to hire a contractor or consultant to perform
work in the Premises, then the Lessee shall, or cause its contractor or consultant to,
carry Commercial General Liability insurance providing continuous coverage for all
work or operations performed in the Premises. Such insurance shall be no more
restrictive than that provided by the latest occurrence form edition of the standard
Commercial General Liability Coverage Form (ISO Form CG 00 01) as filed for use
in the State of Florida. Lessee shall, or cause its contractor to, include the Department
and FHWA to be made Additional Insureds as to such insurance. Such coverage shall
be on an "occurrence" basis and -shall include Products/Completed Operations
coverage. The coverage afforded to the Department and FHWA as Additional
Insureds shall be primary as to any other available insurance and shall not be more
restrictive than the coverage afforded to the Named Insured. The limits of coverage
15
shall not be less than $2,000,000 for each occurrence and not less than a $5,000,000
annual general aggregate, inclusive of amounts provided by an umbrella or excess
policy. The limits of coverage described herein shall apply fully to the work or
operations performed in the Premises, and may not be shared with or diminished by
claims unrelated to the work performed in the Premises. The policy/ies and coverage
described herein may be subject to a deductible and such deductibles shall be paid by
the Named Insured. No policy/ies or coverage described herein may contain or be
subject to a Retention or a Self -Insured Retention unless the Lessee is a state agency
or subdivision of the State of Florida that elects to self -perform the work in the
Premises.
c. Prior to the commencement of any work in the Premises, and at all renewal periods
which occur prior to final acceptance of the work, the Department shall be provided
with an ACORD Certificates of Liability Insurance as well as an Additional Insured
Endorsements naming the Department and FHWA as scheduled additional insureds
reflecting the coverage described herein. The Department shall be notified in writing
within ten (10) days of any cancellation, notice of cancellation, lapse, renewal, or
proposed change to any policy or coverage described herein. The Department's
approval or failure to disapprove any policy/ies, coverage, ACORD Certificates, or
endorsements shall not relieve or excuse any obligation to procure and maintain the
insurance required herein, nor serve as a waiver of any rights or defenses the
Department may have.
10. SECTION 7, TERMINATION, is hereby deleted in its entirety and replaced with
the following:
a. This Agreement is terminable by the Department upon the occurrence of any one or
more of the following events:
i. Lessee violates any of the conditions of this Agreement and such violation is not
corrected within thirty (30) calendar days after written notice of noncompliance has
been given by the Department;
ii. The Premises ceases to be used for the specific purpose set forth in this Agreement;
iii. The Department needs to use the Premises for transportation, maintenance, or
emergency purposes, and in such an event, the Department shall provide Lessee with
180-day advance notice;
iv. Lessee defaults on any of its maintenance obligations pursuant to Section 6 of the
Maintenance Obligations attached hereto as Exhibit "C".
b. Upon termination of this Agreement, Lessee shall immediately discontinue the use
of the Premises and deliver the Premises to the Department, or its agents, in the
condition existing at the commencement of this Agreement.
11. SECTION 9, MISCELLANEOUS, subsection a. is hereby deleted in its entirety
and replaced with the following:
a. The Premises and Lessee's rights under this Agreement shall not be transferred,
assigned, pledged or conveyed to another party without the prior written consent of
the Department, subject to concurrence by the FHWA. Lessee shall not allow any
liens or other encumbrances to attach to the Premises.
12. SECTION 9, MISCELLANEOUS, subsection c. is hereby deleted in its entirety
and replaced with the following:
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 Premises, and of all insurance policies covering the Premises.
13. SECTION 9, MISCELLANEOUS, subsection f. is hereby deleted in its entirety
and replaced with the following:
a. 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 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.
14. SECTION 9, MISCELLANEOUS, subsection i. is hereby deleted in its entirety
and replaced with the following:
i. All notices, requests, demands, consents, approvals, and other communication
which are required to be served or given hereunder, shall be in writing and shall be
sent by email as follows:
17
To the Department: Florida Department of Transportation
1000 Northwest 111th Avenue, Room 6205
Miami, Florida 33172-5800
Attn: District Maintenance Engineer
To Lessee:
Notices shall be deemed to have been received the same day the notice was sent (as
recorded on the device from which the sender sent the email) unless the sender
receives an automated message that the email has not been delivered.
15. SECTION 9, MISCELLANEOUS, is hereby modified to add subsection "t" as
follows:
t. This Agreement shall be recorded in the Public Records of Miami -Dade County,
Florida.
16. The Use and Occupancy Agreement is contingent on a Fully Executed
Maintenance Memorandum of Agreement between the parties.
17. At the sole discretion of the Department of Transportation determines the use
under all existing, entered into, or modified agreements change from a Public
Pedestrian Bridge, the Bridge and components shall revert to the Department of
Transportation as the sole owner of such improvements.
18. Except as modified in this Addendum, all other terms and conditions of the
Agreement shall remain unchanged.
[SIGNATURE PAGE FOLLOWS]
18
LESSEE
By:
Name:
Title:
Attest:
By: _
Name:
Title:
Attest:
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
DISTRICT SECRETARY
LIN
Stacy L. Miller, RE
Attest:
Name:
Title:
LEGAL REVIEW:
0
Name:
District Counsel
W,,
23 CFR, Part 710 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 575-060-32
USE AND OCCUPANCY AGREEMENT RIGHT OF WAY
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Page 1 of 8
ITEM/SEGMENT NO.: 415230-1
MANAGING DISTRICT: Six (6)
F.A.P. NO.:
STATE ROAD NO.: Al MacArthur Cswy
COUNTY: Miami Dade
PARCEL NO.: 7461
THIS AGREEMENT, made this day of between
at
(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, and/or below the highway's established gradeline, lying within the approved right of way limits on a Federal Aid
System, to be accomplished pursuant to a right of way use and occupancy 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 SR-A1A
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 which is that space located above and/or below the
gradeline of the property described in Exhibit "A", attached and such airspace is hereinafter referred to as the "real property interest" or
the "leased property" and made apart hereof for the following purpose: Use of Limited Airspace over State Road p1A MacArthur Cswy
intended solely encompassing the Bridge Span footprint over the State Road.
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:
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 real property interest for a period of See Addendum
beginning with the date of this Agreement. One renewal of this Agreement may be made for See Addendum
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 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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The Department reserves the right to review and adjust the rental fee biannually and at renewal to reflect market
conditions.
575-060-32
RIGHT OF WAY
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Page 2 of 8
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: See Addendum
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. Any 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 real property interest as set forth herein.
b. The Lessee's proposed use of the real property interest is as follows: A Limited Portion of Airspace over State Road Al
MacArthur Cswv
c. The general design for the use of the real property interest, including any facilities to be constructed, and the maps, plans,
and sketches setting out the pertinent features of the use of the real property interest 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 real property interest 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 real property interest 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.
Lessee shall ensure vertical and horizontal access to the Department for maintenance purposes. 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 real property interest shall not adversely affect the use, safety, appearance, or
enjoyment of the highway by lights, sounds, wireless frequencies, smoke, fumes, vapors, odors, droppings, or any other objectionable
discharges, or emissions, or nuisances of any kind therefrom.
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575-060-32
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Page 3 of 8
i. When, for the proposed use of the real property interest, 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 real property
interest.
k. Lessee shall not occupy, use, permit, or suffer the real property interest, 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.
I. 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 may be 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
real property interest 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 place and Lessee shall not disturb or interfere with the
same.
5. Indemnification. (select applicable paragraph)
❑ 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 will 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.
❑ 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.
Lessee'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.
6. Insurance. Lessee at its expense, shall maintain at all times during the term of this Agreement, public liability insurance
protecting the Department, FHWA, 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 TBD ($ ) for bodily injury or death to any one person or any number of persons in
any one occurrence and not less than TBD ($ ) for property damage, or a combined
coverage of not less than TBD ($ ). All such policies shall be issued by companies licensed
to do business in the State of Florida and all such policies shall co22 a provision whereby the same cannot be canceled or modified
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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 and FHWA 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 maybe terminated by either party without cause upon TBD ( ) 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.
J
f. This Agreement is terminable by the Department in the event that the facility ceases to be used for its intended purpose, is
abandoned, or if use of the facility is required by the Department for transportation, maintenance or emergency purposes.
B. 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 real property interest and Lessee's rights under this Agreement shall not be transferred, assigned, pledged or
conveyed to another party without the prior written consent of the Department, subject to concurrence by the FHWA. Lessee shall not
allow any liens or other encumbrances to attach to the leased property.
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 grounds 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 49
CFR part 21..
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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, land, 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 all bills for electricity, lighting, power, gas, water, telephone, and telegraph
services, or any other utility or 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.
j. The parties to this Agreement hereby understand and agree that the venue for any action that may arise as a result of this
Agreement shall be in Leon County, Florida.
k. If Lessee is a "contractor" for the purposes of Section 119.0701, Florida Statutes, Lessee shall comply with public records
laws and specifically shall:
1. Keep and maintain the public records that ordinarily and necessarily would be required to be kept and maintained by
the Department in order to perform the services identified herein.
2. Provide the public with access to those public records on the same terms and conditions that the Department would
provide the records and at a cost that does not exceed the cost provided by law.
3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements
are not disclosed except as authorized by law.
4. Meet all requirements for retaining the public records and transfer, at no cost, to the Department all the public records
in possession of Lessee upon termination of this Agreement and destroy any duplicate public records that are exempt
or confidential and exempt from public records disclosure requirements. All such public records (if any) stored
electronically must be provided to the Department in a format that is compatible with the information technology
systems of the Department.
If Lessee fails during such times to comply with a public records request, the Department shall enforce this section in
accordance with this Agreement.
Lessee shall otherwise allow public access to all documents, papers, letters or other materials, made or received by Lessee in
connection with this Agreement and the lease of the Demised Premises, to the extent such access is required because such
documents, papers, letters or other materials are subject to the provisions of s. 24(a) of the State Constitution or Chapter 119, Florida
Statutes.
I. Section 287.133(3)(a), Florida Statutes, requires that Lessee be informed of the following provisions of section 287.133
(2)(a), Florida Statues: "A person or affiliate who has been placed24the convicted vendor list following a conviction for a public entity
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crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract to
provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a
public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as
a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any
public entity in excess of the threshold amount provided in section 287.017, F.S., for Category two for a period of thirty-six (36) months
from the date of being placed on the convicted vendor list.
m. The Department shall consider the employment knowingly by Lessee of unauthorized aliens a violation of Section 274(e)
of the Immigration and Nationalization Act. Such violation shall be cause for unilateral cancellation of this Agreement.
n. This Agreement shall not create any third -party beneficiary hereunder, nor shall this Agreement authorize anyone not a
party hereto to maintain a suit against the Department pursuant to the terms of this Agreement.
o. This Agreement shall be binding upon the successors, assigns and legal representatives of Lessee and the Department.
p. All Exhibits attached to this Agreement are made a part hereof as if fully copied herein. All submittals required to be
submitted by Lessee that are approved by the Department are by reference made a part of this Agreement as if fully copied herein.
q. Nothing in this Agreement or in any documents executed pursuant to the terms of this Agreement shall be construed as a
waiver or attempted waiver by the Department of its sovereign immunity in tort under the Constitution and laws of the State of Florida.
r. `RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your
county health department.
s. Lessee does not qualify for relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended (42 U.S.C. Section 4601 et seq.)
W
By:
Name:
Title:
Attest:
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above written.
LESSEE (Company Name, if applicable)
Bv:
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
District Secretary
Name: Stacy L. Miller, P.E., District Six Secretary
Attest:
(Seal) Name/Title: Helen Bosque- Executive Administrative Secretary
Legal Review:
District Counsel
Name: Michelle Garrido, Esq.
26
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ADDENDUM
This is an Addendum to that certain Right of Way Use and Occupancy Agreement between
and the State of Florida Department of Transportation dated the day of
In addition to the provisions contained in said Agreement, the following terms and conditions shall be deemed to be a part thereof
pursuant to Paragraph 9 (d) of said Agreement:
This Page is Intentionally Left Blank
See Attached Addendum
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
LESSEE (Company Name, if applicable)
By: By:
District Secretary
Name: Name: Stacy L. Miller, P.E. District Six Secretary
Title: Attest:
Attest: (Seal) Name/Title: Helen Bosque- Executive Administrative Secretary
Name: Legal Review:
Title:
District Counsel
Name: Michelle Garrido, Esq.
27