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COUNCIL TOWERS USE AGREEMENT
THIS USE AGREEMENT (hereinafter referred to as the "Agreement") is made by
and between the Miami Beach Senior Housing Development and Operations
Corporation, Inc. (hereinafter referred to as the "User"), a not-for-profit corporation,
having its principal office at 1580 Sawgrass Corporate Parkway, Suite 210, Ft.
Lauderdale, Florida 33323, and the City Of Miami Beach (hereinafter referred to as the
"City"), a Florida municipal corporation, having its principal office at 1700 Convention
Center Drive, Miami Beach, Florida 33139.
In consideration of the terms, covenants and conditions hereinafter set forth, City,
hereby authorizes User to use certain portions of the City-owned parking lots located at
533 Collins Avenue (beneath Council Towers South) and 1040 Collins Avenue (beneath
Council Towers North), Miami Beach, Florida, identified in Subsection 3.1 and Exhibit
"3.1 (a)" and Exhibit "3.1 (b)" of this Agreement (Use Locations), in accordance with the
following terms and provisions.
1. Use.
User shall use and occupy the Use Locations for the sole purpose of installing a
security gate and fence and provide landscaping and maintenance related to
same in accordance with the terms and provisions of this Agreement.
2. Term.
2.1 The term of this Agreement shall run concurrently with the term of that
certain Lease Agreement entered into between the City and Elderly
Housing Development and Operations Corporation, dated September 1,
2004 (the Lease Agreement), and attached as Exhibit 2.1 hereto.
2.2 Accordingly, this Agreement shall be for ten (10) years, beginning on the
1 st day of September, 2004.
2.3 Provided Lessee renews the Lease Agreement, as provided in Subsection
2.1 thereof, this Agreement shall also be automatically renewed for an
'additional ten (10) year term.
2.4 In the event that Lessee cancels the Lease Agreement pursuant to
Subsection 2.2 of the Lease Agreement, or in the event that the Lease
Agreement is otherwise terminated, expires, or is not renewed, then this
Use Agreement shall be automatically terminated, such termination to be
effective as of the date of termination set forth in the written notice
terminating the Lease Agreement.
3. Installation of Security Gate. Fel1cinQ and Landscapinq (the Improvements),
3.1 For the Term of this Agreement. City agrees that User shall install a
security gate and fencing, with landscaping to buffer same (collectively,
the Improvements), at the following Use Locations:
(a) In that portion of the City-owned parking lot (19 parking spaces at a
reduced rate) located below the air-rights at 533 Collins Avenue
(beneath Council Towers South), Miami Beach, Florida 33139, as
more specifically set forth in the site plan, attached hereto and
incorporated herein as Exhibit "3.1 (a)".
(b) In that portion of the City-owned parking lot (18 parking spaces at a
reduced rate) located below the air-rights at 1040 Collins Avenue
(beneath Council Towers North), Miami Beach, Florida 33139, as
more specifically set forth in the site plan, attached hereto and
incorporated herein as Exhibit "3.1 (b)".
3.2 User shall be solely responsible for obtaining any and all approvals for the
Improvements from the City, and any other regulatory agencies, including
but not limited to approvals by the City in its regulatory capacity.
3.3 User shall submit to City, acting in its proprietary capacity as owner of the
property, plans and specifications for the design, construction, and
installation of the Improvements, to be submitted to the City Manager or
his designee for his review and approval.
3.4 Following review and approval of the plans and specifications, by the City
in its proprietary capacity, User shall seek and obtain any and all
necessary approvals and permits from all applicable regulatory agencies,
including but not limited to, a building permit for construction of the
Improvements.
3.5 User shall not commence construction until all necessary permits and
approvals for the Improvements are issued, and, following
commencement, shall thereafter continue to prosecute construction and
installation of the Improvements with diligence and continuity to
completion, including obtaining any and all final inspections and
certificates of completion.
3.6 The Improvements, as approved and as permitted, shall be completely
constructed and installed no later than six (6) months from the issuance of
a building permit for same.
3.7 At City's sole discretion, upon expiration or termination of this Agreement,
the City may elect to retain the Improvements at the Use Locations. In that
event, ownership of the Improvements shall vest in the City of Miami
Beach and the City shall have the right to possession of same. In the
event the City does not choose to take ownership as aforestated, then
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User shall be governed by the provisions of Section 10, contained herein,
shall govern.
3.8 User herein acknowledges, represents and warrants that any and all cost
associated with the Improvements shall be the sole responsibility of the
User.
3.9 For the term of this Agreement, City grants to User complete access to the
Use Locations from the adjacent alleyway(s) and/or Collins Avenue.
User herein warrants and represents that the City's access shall be seven
(7) days a week, 24 hours a day, 365 days a year. City shall have full, total
and complete access to the Use Locations at any time, with or without
notice, and User agrees to provide City access information cards or keys,
as may be necessary to grant this access.
User agrees that in most cases simply giving the phone number of a
maintenance person is insufficient for City's purposes and a key, access
card or other self executing method for entry or access is required.
Should City deem necessary, in its sole discretion, User further consents
to the installation of a permanent lock box, all costs, fees, and expenses of
which shall be borne exclusively by City.
User agrees and understands that access is a material inducement to City
making, executing and delivering this Use Agreement and the Lease
Agreement, and specifically agrees that should User fail, refuse or neglect
to grant City access pursuant to the terms of this Agreement, it shall be
deemed a material default of the Use Agreement.
3.10 User agrees that fencing material to be installed shall be metal picket, as
approved by the City in its regulatory capacity.
3.11 Additionally, User agrees to landscape and maintain that City-owned
property bounded on the South by the City-owned parking lot located
below the air-rights at 533 Collins Avenue (beneath Council Towers
South), bounded on the North by Sixth Street, bounded on the West by
Collins Avenue, and bounded on the East by Ocean Court, attached
hereto and incorporated herein as Exhibit "3.11 n,
4. Maintenance and Service.
4.1 For the term of this Agreement, User shall be solely responsible for
maintaining and cleaning the Use Locations.
4.2 In addition to Subsection 4.1 above, User shall operate, maintain, service,
and repair, as necessary, the Improvements, and shall be solely
responsible for any and all costs and expenses related to such operation,
maintenance, service, and repair of same.
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4.3 User shall pay before delinquency any and all charges for utilities used by,
for, or on behalf of the activities contemplated herein, including but not
limited to, electricity and water.
4.4 City shall continue providing sanitation and litter control services (once a
day, seven days a week) to the Use Locations and immediately
surrounding public right-of-way areas.
4.5 City shall continue to provide, or cause to be provided, public sidewalk
cleaning on a fifteen day cycle.
4.6 City agrees to pressure clean, resurface and re-stripe the respective Use
Locations beneath both, Council Tower buildings on an as needed basis,
and at the City's sole discretion.
5. Titlell nsu rance/I ndemnification.
5.1 During the term of this Agreement, or any extension thereof, the
Improvements shall remain the property of User. In no event shall City be
responsible or liable for any damage, destruction, or theft to all or a portion
of the Improvements and/or Use Locations, nor be responsible for any
stolen or damaged personal property of any patrons, guests, invitees,
and/or any other third parties utilizing the User Locations.
5.2 Insurance.
User shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement.
(i) Comprehensive General Liability in the minimum amount of One
Million ($1,000,000) Dollars per occurrence for bodily injury and
property damage. This policy must also contain coverage for
premises operations, products and contractual liability.
(ii) Workers Compensation Insurance shall be required under the Laws
of the State of Florida.
The policies of insurance referred to above shall not be subject to
cancellation or changing coverage except upon at least thirty (30) days
prior written notice to the City, and then only subject to the prior written
approval of the City Manager or his designee. Prior to the Commencement
Date of this Agreement, User shall provide City with a Certificate of
Insurance for each such policy. ALL POLICIES SHALL NAME THE CITY
OF MIAMI BEACH AS AN ADDITIONAL NAMED INSURED. All such
policies shall be obtained from companies authorized to do business in the
State of Florida with an A.M. Best's Insurance Guide (latest edition) rating
acceptable to the City's Risk Manager, and any replacement or substitute
company shall also be subject to the approval of the City's Risk Manager.
Should User fail to obtain, maintain or renew the policies of insurance
referred to above, in the required amounts, the City may, at its sole
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discretion, obtain such insurance, and any sums expended by City in
obtaining said insurance, shall be repaid by User to City, plus ten percent
(10%) of the amount of premiums paid to compensate City for its
administrative costs. If User fails to repay City's expenditures within fifteen
(15) days of demand, the total sum owed shall accrue interest at the rate
of twelve percent (12%) until paid and such failure shall be deemed an
event of default hereunder.
5.3 Indemnification.
User agrees to indemnify and hold harmless the City of Miami Beach, its
officers, employees and agents, from and against any and all actions,
claims, liabilities, losses, and expenses, including, but not limited to,
attorneys' fees, for personal, economic or bodily injury, wrongful death,
loss of or damage to property, at law or in equity, which may arise or be
alleged to have arisen from the negligent acts, errors, omissions or other
wrongful conduct of the User, its employees, agents, officers, patrons,
guests, invitees, or any other person or entity acting under User's control,
in connection with this Agreement; with the Improvements, and/or with the
Use Locations, and to that extent, the User shall pay all such claims and
losses and shall pay all such costs and judgments which may issue from
any lawsuit arising from such claims and losses, and shall pay all costs
and attorneys' fees expended by the City in the defense of such claims
and losses, including appeals. This Subsection 5.3 shall survive the
termination or expiration of this Agreement.
6. Taxes and Liens.
User shall at all times keep the Improvements and/or the Use Locations free of
all liens and encumbrances. User agrees to and shall pay before delinquency all
taxes and assessments of any kind assessed or levied upon City and/or User by
reason of this Agreement or by reason of the activities of User under this
Agreement. User shall also pay for any fees imposed by law for licenses or
permits for any business or activities of User under this Agreement.
If ad valorem taxes should be assessed by the Miami-Dade County Tax
Appraiser, User shall be solely responsible for payment of same.
7. Termination for Convenience.
Notwithstanding any other provision of this Agreement, the City may, at its sole
discretion, and for its convenience and without cause, terminate this Agreement
at any time during the term hereof by giving written notice to User of such
termination, which shall become effective ninety (90) days following receipt by
the User of the written termination notice. In the event that the City terminates
this Use Agreement pursuant to the provisions of this Section 7, the Lease
Agreement shall continue to remain in full force and effect; provided that in such
case, the City shall, as of the date of termination of the Lease Agreement,
commence to make the Use Payment, as set forth in Article III of the Lease
Agreement.
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8. User's Riqht to Terminate.
User may terminate this Agreement at any time, without any penalty or liability to
City (other than fees owed to City under this Agreement) by giving City written
notice at least ninety (90) days prior to such termination. In the event User
terminates this Use Agreement pursuant to this Section 8, the Lease Agreement
shall continue in full force and effect, and the City, at its sole option and
discretion, may elect to retain the Improvements pursuant to Subsection 3.7 of
this Agreement, or notify User that the Improvements and the User Locations are
to be removed and surrendered pursuant to Section 9 of this Agreement.
9. Surrender of User Locations.
At the expiration of this Agreement, or in the event of a termination pursuant to
Sections 7 or 8, respectively, or in the event this Agreement is otherwise
declared null and void and of no further force or effect, User shall surrender the
User Locations in the same condition as said User Location was prior to the
commencement of this Agreement, reasonable wear and tear excepted. User
shall, at the City's option, remove the Improvements, and restore the User
Locations to a satisfactory condition, as shall be determined solely by the City in
its reasonable discretion and judgment. User's obligation to observe or perform
this covenant shall survive the expiration or other termination of this Agreement.
Continued occupancy of the User Locations after termination of the Agreement
shall constitute trespass by the User, and may be prosecuted as such. In
addition, the User shall pay to the City One Thousand ($1,000) Dollars per day
as liquidated damages for such trespass and holding over.
10. Entire Aqreement.
This Agreement and the exhibits attached hereto constitute the entire Agreement
between User and City with respect to the subject matter hereof and shall
supersede all previous negotiations, commitments and writings. This Agreement
may not be modified in any manner except by an instrument in writing signed by
a duly authorized officer or representative of both User and City.
11. Notices.
All notices from the City to the User shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt, or hand delivered, to
the User at the following address:
Mary Lou Lienhard, Executive Manager
Miami Beach Senior Housing Development and Operations Corporation, Inc.
1580 Sawgrass Corporate Parkway, Suite 210
Ft. Lauderdale, FL 33323
All notices from the User to the City shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt requested, or hand delivered,
to the City at the following addresses:
6
IT Director
City of Miami Beach
1100 Washington Avenue
Miami Beach, Florida 33139
User and City may change the above mailing address at any time upon giving
the other party written notification. All notices under this Agreement must be in
writing.
12. Bindinq Effect: Successors and Assiqnments.
This Agreement is binding on the Parties and their respective successors and
assigns. User may not assign this Agreement without the prior written consent of
City.
13. Relationship of the Parties.
It is expressly understood and acknowledged that it is not the intention or
purpose of this Agreement to create, nor shall the same be construed as
creating, any type of partnership, relationship or joint venture.
14. Governinq Law and Exclusive Venue.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Florida, both substantive and remedial, without regard to
principles of conflict of laws. The exclusive venue for any litigation arising out of
this Agreement shall be Miami-Dade County, Florida, if in State Court, and the
U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING
INTO THIS AGREEMENT, CITY AND USER EXPRESSLY WAIVE ANY
RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL
LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT.
15. Laws.
15.1 Compliance.
User shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules and regulations, including but not limited to all
applicable environmental City, County, State, and Federal ordinances,
statutes, rules and regulations.
15.2 Equal Emplovment Opportunity.
Neither User nor any affiliate of User performing services hereunder, or
pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual
orientation, and disability, as defined in Title I of ADA. User will take
affirmative steps to utilize minorities and females in the work force and in
correlative business enterprises.
15.3 No Discrimination.
User agrees that there shall be no discrimination as to race, sex, sexual
orientation, color, creed, national origin, familial status, religion or
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handicap, in its employment practice or in the operations referred to by
this Agreement; and further, there shall be no discrimination regarding any
use, service, maintenance, or operation within the area. All services
offered within the area shall be made available to the public, subject to the
right of the User and the City to establish and enforce rules and
regulations to provide for the safety, orderly operation and security of the
area.
Pursuant to Sections 62-90 and 62-91 , of Chapter 62, of the Miami Beach
City Code entitled "Human Relations", User, by executing this Agreement,
certifies that it does not discriminate in its membership or policies based
on race, color, national origin, religion, sex, sexual orientation, familial
status or handicap.
16. Miscellaneous,
16.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be
or create a partnership or joint venture between the User and City.
16.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto.
16.3 Headinqs.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
16.4 Bindinq Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
16.5 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the
Agreement shall remain in full force and effect as if such illegal or invalid
term or clause were not contained herein unless the elimination of such
provision detrimentally reduces the consideration that either party is to
receive under this Agreement or materially affects the continuing operation
of this Agreement.
16.6 Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be
invalid or unenforceable, or shall become a violation of any local, State, or
Federal laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
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thereby and this Agreement as so modified shall remain in full force and
effect.
16.7 Riqht of Entry.
City, at the direction of the City Manager, shall at all times have the right to
enter into and upon any and all parts of the Use Locations for the
purposes of examining the same for any reason relating to the obligations
of parties to this Agreement.
16.8 Siqnaqe.
Any signage posted by User on the Use Locations and/or the
Improvements shall be subject to the prior written approval of the City, in
its proprietary capacity, as to size, shape and placement of same. Any
advertising, signage and postings shall also be approved by the City, in its
proprietary capacity, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations.
16.9 No Waiver.
No waiver of any covenant or condition of this Agreement by either party
shall be deemed to imply or constitute a waiver in the future of the same
covenant or condition or of any other covenant or condition of this
Agreement.
16.10 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, other
than the parties hereto and their respective successors and permitted
assigns, any rights or remedies by reason of this Agreement.
17. Limitation of liability.
Notwithstanding any other provision of this Agreement, City's total liability, whether
for breach of contract, warranty, negligence, strict liability in tort, indemnification, or
otherwise, is limited to the direct damages recoverable under law. In no event will
City be liable for any loss of use, loss of time, inconvenience, commercial loss, lost
profits or savings, or other incidental or consequential damages related to or arising
from this Agreement. This limitation of liability will survive the expiration or
termination of this Agreement. Nothing contained in this Article 17 or elsewhere in
this Agreement is in any way intended to be a waiver of the limitation placed upon
the City's liability as set forth in Section 768.28, Florida Statutes.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year firs bove written, indicating their
agreement. ;/
A I BEACH, FLORIDA
ATTEST:
MAYOR
ATTEST:
MIAMI BEACH SENIOR
HOUSING DEVELOPMENT AND
OPERATIONS CORPORATION,
INC.
SECRETARY
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