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93-21003 ResoRESOLUTION NO. 93-21003 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO ESECUTB A CONSTRUCTION AGREEMENT AND A JOINT USE AGREEMENT, RESPECTIVELY, WITH THE SCHOOL BOARD OF DADE COUNTY, FLORIDA, FOR THE CONSTRUCTION, JOINT USE AND COORDINATION OF RECREATIONAL AND OTHER FACILITIES TO BE LOCATED ON THE PROPERTY COMMONLY KNOWN AS THE "NAUTILUS MIDDLE SCHOOL" PROPERTY. WHEREAS, on October 21, 1992, the Mayor and City Commission approved Resolution No. 92-20635, authorizing the execution of an Exchange Agreement between the City and the School Board of Dade County, Florida (the School Board), for the exchange of the City- owned property located at 805 42nd Street Miami Beach, Flcrid~, and commonly known as "Polo Park", for the School Board-owned property located at 4301 N. Michigan Avenue, Miami Beach, Florida, and commonly known as the "Nautilus Middle School", said Agreement attached and incorporated herein as Exhibit "A"; and WHEREAS, pursuant to the terms of the Exchange Agreement, the City agreed to the exchange of the Polo Park property for the Nautilus Middle School property provided the School Board construct certain recreational improvements on the existing Nautilus Middle School Property in accordance with plans and specifications approved by the City; and WHEREAS, the City and the School Board now wish to enter into a Construction Agreement to accomplish the purposes set forth above; said Agreement attached and incorporated herein as Exhibit "B"; and WHEREAS, the parties further wish to enter into a Joint Use Agreement, attached and incorporated herein as Exhibit "C", providing for the joint use and coordinated action of the proposed recreational facilities, activities, and programs in a manner that will mutually benefit the City and the Dade County Public School System. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Clerk are herein authorized to execute, respectively, the attached Construction Agreement and Joint Use Agreement with the School Board of Dade County, Florida, for the construction, joint use and coordination of recreational and other facilities to be located on the property commonly known as the "Nautilus Middle School" property. PASSED and ADOPTED this 15th - ~ ---- ATTEST: CITY CLERK FORM APPR01/Et~ LEG~E DEPT. ey ~ ~ Date ~ Z' ~ ~ - ~ ~ c:\up51\data\naut.res ~~ CI~rY OF MIAMI BEACH CITY HALE 1700 CONVEN'ION CENTER DRIVE MIAMI BEACr ~LOR~CA 33'~~~9 OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010 FAX: (305) 673-7782 COMMISSION MEMORANDUM NO. _ ~ TO: Mayor Seymour Gelber and Members of the City Commission FROM: Roger M. Carlton City Manager SUBJECT: DATE: December 15 , 19 9 3 AGREEMENT WITH THE DADE COUNTY SCHOOL BOARD FOR CONSTRUCTION AND JOINT USE ON THE NAUTILUS MIDDLE SCHOOL ROPERTY AND POLO PARR PROPERTY ADMINISTRATION RECOMMENDATION: The Administration recommends that the City Commission adopt the attached resolution and authorize the Mayor and City Clerk to execute the attached Construction and Joint Use Agreement with the School Board of Dade County. BACKGROUND: The City of Miami Beach (City) currently owns the property located at 805 42nd Street commonly known as Polo Park and the Dade County School Board (School Board) owns the property located at 4301 North Michigan Avenue commonly known as the Nautilus Middle School. The School Board has budgeted funds and' wishes to construct a new Nautilus Middle School on the existing Polo Park property. Furthermore, the School Board would like to continue to operate the existing middle school during the construction of the new school and requested that the City exchange the existing Polo Park property for the existing Nautilus Middle School property. On April 21, 1992, the City's Planning Board approved amendments to the comprehensive plan along with a change in zoning that would allow for a school-use on the Polo Park property. These changes were subsequently approved on October 8, 1992, by the City Commission via Ordinance 92-2814. Additionally, the School Board, at its meeting of October 14, 1992 and the City Commission at~ts meeting of October 21, 1992, approved the Exchange Agreement for the subject properties. ANALYSIS: In order to fulfill its goal of constructing a new school and continue to have the existing school in session, during the construction period, it is necessary for the School Board and the City to exchange the Polo Park property for the Nautilus Middle School property. The terms of the approved Exchange Agreement require the School Board to construct a new middle school on the site of the existing 26 Polo Park property while continuing to operate the existing middle school. AGENDA ITEM _ DATE ~ ~- I ~ t~ CONSTRUCTION AGREEMENT THIS CONSTRUCTION AGREEMENT, made and entered into this~;r~~ day of ,~~~ ~/yJ~. ~`f , 19~, by and between THE CITY OF MIAMI BEACH, a municipal corporation of the State of Florida, (hereinafter called the "CITY"), and THE SCHOOL BOARD OF DADE COUNTY, FLORIDA, a body corporate and politic of the State of Florida, (hereinafter called the "SCHOOL BOARD"). WITNESSETH: WHEREAS, the CITY is the owner of the following described property described in Exhibit "A" and located at 805 42nd Street, Miami Beach, Florida, commonly known as "Polo Park", (hereinafter called the "EXISTING POLO PARK PROPERTY"); and WHEREAS, the SCHOOL BOARD is the owner of the property described in Exhibit "B", on which is located the existing Nautilus Middle School, and whose street address is 4301 North Michigan A~~enue, Miami Beach, Florida (hereinafter called the "EXISTING NAUTILUS SCHOOL PROPERTY"); and WHEREAS, the SCHOOL BOARD has represented and warranted to the CITY that it wishes to construct, and has budgeted the funds to construct, a new Nautilus Middle School on the EXISTING POLO PARK PROPERTY, demolish most of the existing Nautilus Middle School, leaving the existing Media Center, and construct new tennis and other recreation facilities on the EXISTING NAUTILUS SCHOOL PROPERTY (the "Project"); and WHEREAS, in order to fulfill its goal of constructing a new school on the EXISTING POLO PARK PROPERTY and to continue to have the existing Nautilus Middle School in session while under construction, the SCHOOL BOARD has requested the CITY to exchange the EXISTING POLO PARK PROPERTY for the EXISTING NAUTILUS SCHOOL PROPERTY; and WHEREAS, the CITY has agreed to exchange the EXISTING POLO PARK PROPERTY for the EXISTING NAUTILUS SCHOOL PROPERTY provided the SCHOOL BOARD constructs the recreational improvements on the EXISTING NAUTILUS SCHOOL PROPERTY in accordance with plans and specifications approved by the CITY; and WHEREAS, the parties wish to enter into this Construction Agreement to accomplish the purposes set forth above. NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: I. GENERAL TERMS The SCHOOL BOARD will construct at its sole cost and expense, including all demolition and construction of, the recreational and other facilities to be located on the EXISTING NAUTILUS SCHOOL PROPERTY and will construct a new Nautilus Middle School on the EXISTING POLO PARK PROPERTY. The SCHOOL BOARD reserves full control, custody, right to access, operation and exclusive use of the EXISTING NAUTILUS SCHOOL PROPERTY, subject to the CITY's right to use the recreational facilities during non-school hours, until such time as the new Nautilus Middle School is occupied by the SCHOOL BOARD. The effective date of occupation shall be set forth by the SCHOOL BOARD in a written notice submitted to the CITY. II. COMMENCEMENT/COMPLETION DATES The SCHOOL BOARD shall commence construction of the Project within forty-five (45) days following approval by the CITY of this Agreement and the respective exchange of the CITY and SCHOOL BOARD properties, as referenced by the Exchange Agreement between the CITY AND THE SCHOOL BOARD, dated October 21, 1992 (hereafter "Commencement Date") shall continue construction in accordance with the terms and conditions contained herein so as to complete construction of all portions of the Project by a date which is thirty-six (36) months from the Commencement Date (hereafter "Completion Date"). III. JOINT USE Prior to completion of the proposed improvements on the EXISTING NAUTILUS SCHOOL PROPERTY (see Exhibit "C"), an area of said property, to be agreed upon between the SCHOOL BOARD and the CITY, shall be utilized for the recreational needs of the existing Nautilus Middle School during regular school hours and will be available to the general public during non-school hours. The Board shall have the right to promulgate and enforce reasonable rules for use by the general public during normal school hours. 3 IV. CONSTRIICTION SITE ACCESS The SCHOOL BOARD shall require its contractor and related vendors to access the construction site via West 42nd Street. A temporary chain link fence shall be installed and maintained by the SCHOOL BOARD for the duration of the Project. V. COORDINATION AND SCHEDOLING The SCHOOL BOARD shall be responsible for all aspects of construction scheduling for the entire Project. Upon the CITY's request, the SCHOOL BOARD agrees to apprise the CITY as to the status of the Project's construction schedule. VI. MAINTENANCE During construction of the entire Project, the SCHOOL BOARD agrees to maintain both the EXISTING NAUTILUS SCHOOL PROPERTY and the EXISTING POLO PARK PROPERTY in a safe, secure, and usable condition. vII. CITY'S RIGHT TO ENTRY The SCHOOL BOARD agrees to permit the CITY or any of its agents to enter and examine the EXISTING NAUTILUS SCHOOL PROPERTY, with the prior consent of the school's administrator, for any purpose the CITY deems necessary, provided the CITY does not unreasonably interfere with or unduly burden the SCHOOL BOARD's operations or programs. 4 VIII. APPROVAL OF PROJECT PLANS The SCHOOL BOARD shall submit any and all plans for the proposed improvements on the EXISTING NAUTILUS SCHOOL PROPERTY (see Exhibit "C") for the CITY's review and approval in accordance to the CITY's Plan Approval Process; including but not limited to submittal of any and all Schematic Plans, Design Development Plans, and Constructions Plans (i.e. final working plans and specifications). In the event of a disapproval of the plans by the CITY, SCHOOL BOARD shall, within thirty (30) days after the date the SCHOOL BOARD receives notice of such disapproval, resubmit such plans to the CITY, altered to meet the grounds of disapproval. Any resubmission shall be subject to review and approval by the CITY pursuant to the foregoing Plan Approval Process, until the same shall be finally approved by the CITY. The parties hereto shall act in good faith to attempt to resolve any disputes concerning the plans and the CITY shall not unreasonably withhold its consent to any such requested approvals. The SCHOOL BOARD acknowledges that any plan approval given by the CITY shall not constitute an opinion by the CITY that the plans are structurally sufficient or in compliance with any laws, codes or other applicable regulations, and no approval shall impose any liability on the CITY, other than the rights of approval granted to the CITY herein. All plans as finally approved by the CITY shall be initialled by the CITY and the SCHOOL BOARD, and shall be and 5 are incorporated into this Agreement by reference. I%. CONSTRUCTION CONTRACTS The SCHOOL BOARD will require that all contracts which it enters into for construction of the recreation improvements on the EXISTING NAUTILUS SCHOOL PROPERTY, include a provision indemnifying and holding harmless the CITY for any personal injury or property damage claims, liability, losses, and causes of action which may arise as a result of said construction activities. Furthermore, the SCHOOL BOARD will also require such construction contracts to provide for sufficient insurance coverage, naming the CITY as an additional insured thereunder and otherwise providing coverage and/or language to the extent necessary to protect the CITY's interests in real or personal property located on the EXISTING NAUTILUS SCHOOL PROPERTY. The SCHOOL BOARD agrees to require that the CITY be named as co-obligee on all surety bonds, including but not limited to performance, labor and/or material payments bonds, associated with any construction contracts entered into by the SCHOOL BOARD for the recreation improvements to be built on the EXISTING NAUTILUS SCHOOL PROPERTY. %. FINAL PLANS The SCHOOL BOARD agrees that it shall provide the CITY with copies of all final "as-built" plans and specifications used in the construction of the recreational improvements within ninety (90) 6 days after completion of same. Schematic Plans and Construction Plans and all work by the SCHOOL BOARD with respect to the Project and the construction thereof shall be in conformity with this Agreement and all applicable state, county and local laws and regulations. %I. PERMITS AND APPROVALS The SCHOOL BOARD shall secure and pay for any and all permits and approvals necessary for proper construction and completion of the Project, subject to 235.26 Florida Statutes. BII. INDEMNIFICATION AND HOLD HARMLESS The SCHOOL BOARD does hereby agree to indemnify, defend, and hold harmless the CITY to the extent of the limitations included within Florida Statutes, Section 768.28, subject to the provisions in this Act whereby the SCHOOL BOARD shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of $100,000, or any claim or judgment or portions thereof, which, when totalled with all other claims or judgments paid by the SCHOOL BOARD arising out of the same incident or occurrence, exceeds the sum of $200,000, from any and all personal injury or property damage claims, liability, losses and causes of action which may arise solely as a result of the SCHOOL BOARD'S negligence in its use of the DEMISED PREMISES. However, nothing herein shall be deemed to indemnify the CITY for any liability or claim arising out of the negligence, performance 7 or failure of performances of the CITY or as a result of the negligence of any unrelated third party. The CITY does hereby agree to indemnify, defend, and hold harmless the CITY to the extent of the limitations included within Florida Statutes, Section 768.28, subject to the provisions in this Act whereby the CITY shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of $100,000, or any claim or judgment or portions thereof, which, when totalled with all other claims or judgments paid by the CITY arising out of the same incident or occurrence, exceeds the sum of $200,000, from any and all personal injury or property damage claims, liability, losses and causes of action which may arise solely as a result of the CITY'S negligence in its use of the DEMISED PREMISES. However, nothing herein shall be deemed to indemnify LESSEE for any liability or claim arising out of the negligence, performance or failure of performances of the SCHOOL BOARD or as a result of the negligence of any unrelated third party. %III. DTILITIES Until such time as the CITY accepts the completed improvements to be built on the EXISTING NAUTILUS SCHOOL PROPERTY, the SCHOOL BOARD will, at its own expense, pay all utility charges arising out of its use of the EXISTING NAUTILUS SCHOOL PROPERTY, including charges for trash and garbage pick up. 8 slv. PEACEFIIL POSSESSION Subject to the terms, conditions, and covenants of this Agreement, the CITY agrees that the SCHOOL BOARD shall and may peaceably have, hold and enjoy the above described EXISTING NAUTILUS SCHOOL PROPERTY, without hindrance of molestation by the CITY. At the expiration of this Agreement, the SCHOOL BOARD shall, without demand, quietly and peaceably deliver up possession of the EXISTING NAUTILUS SCHOOL PROPERTY, subject to acceptance by the CITY of the recreational improvements located therein. %V. ACCEPTANCE OF THE IMPRODEMENTS Upon completion of the aforementioned improvements, the CITY shall inspect the recreational improvements to determine whether they are in accordance with the plans approved by the CITY. In the event that these improvements fail to comply with the approved construction plans and specifications, or with the applicable State, County, and/or city building codes, the SCHOOL BOARD, upon receipt of written notification from the CITY, shall take such steps as necessary to remedy them. Both parties agree that once the CITY grants its final approval of the completed improvements, the CITY shall also accept possession of said improvements. XVI. COMPLIANCE WITB FEDERAL, STATE, AND LOCAL LAWS All parties hereby agree that they shall comply with all applicable laws, ordinances and codes of Federal, State and Local 9 governments, including the Americans with Disabilities Act, as they apply to this Agreement. RVII. ASSIGNMENT This Agreement shall not be assignable in whole or in part by either party without the prior written consent of the other party. BVIII. TERI~sINATION This Agreement may be terminated only by mutual agreement of the parties hereto. 8I8. MISCELLANEOOB 1) This Agreement constitutes the entire agreement between the parties and may not be modified except by a written amendment executed by both parties. 2) 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 thereby and this Agreement shall be so modified. %%. LIMITATION OF LIABILITY The CITY desires to enter into this Agreement only if in so doing the CITY can place a limit on its liability for any cause of 10 action for money damages due to an alleged breach by the CITY of this Agreement, so that its liability for any such breach never exceeds the sum of $1,000,000. The SCHOOL BOARD hereby expresses its willingness to enter into this Agreement with a $1,000,000 limitation on recovery for any damage action for breach of contract. Accordingly, the SCHOOL BOARD hereby agrees that the CITY shall not be liable to the SCHOOL BOARD for damages in an amount in excess of $1,000,000 for any action occurring from breach of contract arising out of the performance or non performance of any application imposed upon the CITY by this Agreement. The foregoing provision shall not preclude an action by the SCHOOL BOARD for specific performance. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitations placed upon the CITY's liability as set forth in Florida Statute, Section 768.28 8%I. ARBITRATION Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and shall deal with the question of the cost of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent that the parties cannot agree upon the arbitrator, then the 11 American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement or the breach thereof, including any controversy or claim relating to the right to specific performance, shall be settled by litigation not arbitration. IN WITNESS WHEREOF the parties have executed this Agreement on the date and year above written. ~ITY OF MI BEACH THE SCHOOL BOARD OF DADE COUNTY, FLORIDA M yor C airman ST: City Clerk ~rl~ ~~ APPROVED AS TO FORM: City Attorney Attachments a:\rja\constr.agr 12 EXIS`TIlVG POLO PARK PROPER'L'Y EXHIBIT ~~ A.. Beginning at the Intersection of the southh M chif an Avenue, as ho(wn on Plat of produced easterly, with the Easterly line of Nort a e 98, of the Public Records of Nautilus Extension Thi-rd, recorded in Plat Book 34, at p g Dade County, Florida, said point being also the North Westerly corne~lOUfda 43rd( Street, City Park; thence run Easterly, along the Southerhlyn of said five (5 acre park, a distance produced Easterly, said line being the Northerly of Seven Hundred Fifty-two and eight tenths (752.8) useAdd lion, re~orded inePlat Book S, North Meridian Avenue, as shown on Plat of Nautil Florida, said point being the POINT at page 130, of the Public Records of Dade County, _ OF BEGINNING of the tract of land herein descriobf North Mendia Ave u a distance of a Northerly direction along the said Westerlyoae and two tenths (51.2) feet northerly from 151.89 feet to a point, said point being Fifty- the point of curvature as shown on said Plat of Na 90ude dees~a~d stance of Two Hundred direction along a line deflecting to the left Ninety ( ) gr thence deflecting to the left Ninety (90) eighty-six and five tenths (286.5) feet to a point; degrees run in a Southerly direction to the aforeE~ i1rlaueCtion alongthe ssaid Easte ly of West Forty-third (43rd) Street; thence run in 43rd Street to the POINT OF extension of the Southerly338 a ceswmore orr less. d ( ) BEGINNING, containing 1. AND BEGIl~INING at a point which is the intersection of the Northerly line of West Forty- second Street and the Westerly line of North Mea dance of 700 feet more lor~lessg toga Northerly line of West Forty-second Street for thence Northerly along said point which is on the Easterly line of Michigan Avenue; Easterly line of North Michigan Avenue for a distan ee f roduced Easterly; thenceoEaste ly which is on the Southerly line of West Forty-thud P along said Southerly line of West Forty-third Streelinpr f N ~ Meridian Avenue; thcence 752.9 feet, more or less, to a point on sand Weste ly Southerly along said Westerly line of North Meridiuan Nornthu Meridian Avenue is shown on more or less, to the POINT OF BEGINNING, as Nautilus Addition, recorded in Plat Book 8 atb a~1o130recodded in Plat Booko34 at Page Street is shown on Forty-first Street Business Su n+ 92, and as said North Michigan Avenue and West Forty-third Street are shown on Nautilus Extension on Third, recorded in Plat Book 34mope or 9essall of the Public Records of Dade County, Florida, and containing 5.117 acres, And less the following described parcel: BEGINNING at a point which is the intersection of the Southerly line of West Forty- third (43rd) Street, produced Easterly, wit athre o ded in Platf Book 3~at lpage 998, of the shown on Plat of Nautilus Extension Thu , Public Records of Dade County, Florida, said POINT OF BEGINNING being also the Northwesterly corner of a five (5) acre City Park; thence run easterly along the southerly line of West Forty-third (43rd) Street produced Easterly, said line being the Northerly line thence of said five (5) acre park, a distance of two hundred sixty (2b0) feet to a point; deflecting to the right ninety (90) degrees nne deflecthmerl~ dhe right ninety (90) degrees hundredtwenty-seven (227) feet to a powt; the g run in a Westerly direction to the Easterly line d Nart bMce ~ ~ a Northerly direc~ on Michigan Avenue is shown oa the above-mentione p , along the Easterly line of said North MichiganmA1enoui lteossthe POINT OF BEGINNING, containing one and three tenths (1.303) acre , Total acreage 224,424 square feet or 5.152. Page 2 of 2 EXISTING NAUTILUS SCHOOL PROPERTY EXIiH3IT "B'• Begin 80.0 feet Southerly of the intersection of the Southerly line of West 43rd Street produced Easterly and the Easterly line of North Michigan Avenue as same is shown on a plat entitled "NAUTILUS EXTENSION THIRD" as recorded in Plat Book 34 of Page 98 Public Records of Dade County, Florida; thence run in a Southeasterly direction along a circular curve to the left, having a Radius of 129.90 feet and a Central Angle of 15°-00'-00", a distance of 34.01 feet to a point of Tangency; thence run in a Southeasterly direction along said easterly line of North Michigan Avenue a distance of 117.38 feet to a point; thence run Easterly parallel to a Southerly line of West 43rd Street a distance of 225.19 feet to a point; thence run Northerly at right angles to Southerly Line of West 43rd St. a distance of 227.0 feet to the Southerly line of West 43rd Street produced easterly; thence run Easterly along said Southerly line of West 43rd Street produced easterly a distance of 186.30 feet to a point; thence run in a Northeasterly direction a distance of 253.97 feet to a point, said point being 286.50 feet Northwesterly from the Southeast corner of Block 24 of "NAUTILUS EXTENSION FOURTH" according to the plat thereof as recorded in Plat Book 40 at page 68, Public Records of Dade Couaty, Florida; thence continue in a Northwesterly direction along the Southerly line of said Block 24, a distance of 503.32 feet to the Easterly line of NORTH MICHIGAN AVENUE; thence run in a Southeasterly direction along said easterly line of NORTH MICHIGAN AVENUE a distance of 80.0 feet to a point of Curve; thence run in a Southerly direction along a curve to the left, having a Radius of 515.42 feet, and a Central Angle of 19°-14'-21", a distance of 173.07 feet to a point, thence run southerly along the Easterly line of NORTH MICHIGAN AVENUE a distance of 240.0 feet to the Point of Beginning. Containing 217,388 Square Feet or 4.991 Acres .w JOINT IISB AGREEMENT THIS AGREEMENT, made and entered into this _~~ day of ..~ ~/i1~;;~ ~~ , 199c~, by and between THE CITY OF MIAMI r BEACH, a municipal corporation of the State of Florida (hereinafter called the "LESSOR"), and the SCHOOL BOARD OF DADE COUNTY, FLORIDA, a body corporate and politic of the State of Florida, (hereinafter called the-"LESSEE") WHEREAS, the LESSOR and the LESSEE are mutually interested in and concerned with providing and making available recreational programs, activities and facilities for the use and benefit of Dade County Public Schools and the City of Miami Beach; and WHEREAS, the LESSOR owns and has under its jurisdiction certain property capable of being utilized at mutually suitable times for LESSEE'S programs; and WHEREAS, these objectives may be best achieved through joint and coordinated action of the LESSOR and the LESSEE in making the LESSOR'S property available for such purposes in the most cost effective manner; and WHEREAS, the Mayor and City Commission of the City of Miami Beach by the adoption of Resolution No. 93-21003 at its meeting of Oecer~ber 1, 1993 approved this Agreement; and WHEREAS, the Dade County School Board has also authorized this Agreement in accordance with Board Item No . ' / ~ , approved at their meeting of ~f-`7'~-7f~ ~~2 ~,i9g~j NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: I. PREMISES TO B8 LEASED LESSOR does hereby lease to LESSEE and LESSEE does hereby lease from LESSOR the following described parcel of land, hereinafter called the "DEMISED PREMISES", lying and being in the County of Dade, State of Florida, depicted on the sketch attached hereto as Attachment "A". II. TBRM OF LEASE AGREEMENT The original term of this Agreement shall be forty (40) years commencing on January 20, 1994 Provided Lessee is in good standing under the terms of this Agreement, said term may be extended by LESSEE for one (1) additional term of twenty (20) years, upon the same terms and at the same consideration as provided herein, upon LESSEE giving written notice to the LESSOR of such extension no later than one hundred and eighty (180) days prior to the expiration of the initial term hereof. III. IISE OF PROPERTY The DEMISED PREMISES may be utilized as a playground, athletic and recreation area. LESSEE shall have full control, custody, right and use of the DEMISED PREMISES during regular school hours on regular school days. LESSEE's use of the DEMISED PREMISES during summer school and for after-school activities shall be 2 coordinated between the administrators of Nautilus Middle School ("School") and LESSOR'S Parks Department. LESSEE agrees to allow the LESSOR, as well as the general public, the right to have access to and use of the following areas of the DEMISED PREMISES during school hours: tot lot, racquetball and tennis courts. However, LESSEE reserves the right to promulgate and enforce reasonable rules and regulations governing the use of said recreational facilities by the public during school hours. IV. . IMPROPEMENTS LESSEE shall have the right to construct recreational improvements on the DEMISED PREMISES, including but not limited to the list of improvements attached hereto as Attachment "B". LESSEE agrees that no such improvements may be undertaken by it upon the DEMISED PREMISES unless the plans are first submitted for review and approval by the LESSOR. LESSOR shall submit any and all plans for Lessee's review and approval in accordance to Lessee's Plan Approval Process, including but not limited to submittal of any and all Schematic Plans, Design Development Plans, and Construction Plans (i.e. final working plans and specifications). v. CONBIDERATION LESSEE does hereby covenant and agree to pay LESSOR as consideration for the use and occupancy of the DEMISED PREMISES 3 throughout the term of this Agreement and any renewal thereof, the sum of one dollar ($1.00) per year in advance, beginning on the date hereof and on the anniversary date of each and every year thereafter. OI. NO LIABILITY FOR PERSONAL PROPERTY LESSOR and LESSEE agree to insure or self insure their respective interests in personal property to the extent each deems necessary or appropriate and hereby mutually waive all rights to recovery for loss or damage by any means and waive all rights to recovery for loss and damage to such property by any cause whatsoever. LESSOR and LESSEE hereby waive all rights of subrogation as to each other only under any policy or policies they may carry or on property placed or moved on the DEMISED PREMISES. vII. INDEMNIFICATION LESSEE does hereby agree to indemnify, defend, and hold harmless LESSOR to the extent of the limitations included within Florida Statues, Section 768.28, subject to the provisions in this Act whereby LESSEE shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of $100,000 or any claim or judgment or portions thereof, which, when totalled with all other claims or judgments paid by the LESSEE arising out of the same incident or occurrence, exceeds the sum of $200,000, from any and all personal injury or property damage claims, liability, losses and causes of action 4 which may arise solely as a result of LESSEE's negligence in its use of the DEMISED PREMISES. However, nothing herein shall be deemed to indemnify LESSOR for any liability or claim arising out of the negligence, performance or failure of performance of LESSOR or as a result of the negligence of any unrelated third party. LESSOR does hereby agree to indemnify defend, and hold harmless LESSEE to the extent of the limitations included within Florida Statutes, Section 768.28, subject to the provisions in this Act whereby LESSOR shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of $100,000, or any claim or judgment or portions thereof, which, when totalled with all other claims or judgments paid by the LESSOR arising out of the same incident or occurrence, exceeds the sum of $200,000, from any and all personal injury or property damage claims, liability, loses and causes of action which may arise solely as a result of LESSOR'S negligence in its use of the DEMISED PREMISES. However, nothing herein shall be deemed to indemnify LESSEE for any liability or claim arising out of the negligence, performance or failure of performance of LESSEE or as a result of the negligence of any unrelated third party. _ vIII. IITILITIES LESSOR agrees to pay for all utilities consumed on the DEMISED PREMISES, and LESSEE agrees to pay for all connection and installation charges thereof. 5 I%. MAINTENANCE OF LEASED PR.P.2QISE8 LESSOR shall be responsible for the actual maintenance of the DEMISED PREMISES and improvements. Maintenance shall include, but not be limited to, mowing, edging, trimming, trash and litter removal, repairs to the softball field, backstop and basketball courts, as well as repairs to the irrigation system. Z. EERMINATION OF PREMISES LESSEE agrees to permit LESSOR's City Manager or his designee to enter upon the DEMISED PREMISES during the LESSEE's hours of use, for any purpose LESSOR deems necessary to, incident to, or connected with the performance of LESSOR'S duties and obligations hereunder, or in the exercise of its rights and functions, provided LESSOR does not interfere or unduly burden LESSEE'S operations. %I. TERMINATION LESSEE and LESSOR agree that they shall perform and abide by all the terms and covenants of this Agreement. In the event of any breach of any such terms or covenants, the party in breach shall be given thirty (30) days written notice to make reasonable effort to either cure or attempt to cure said breach, failing which the non- breaching party shall have the right to terminate this Agreement. LESSEE and LESSOR shall have the right to terminate this Agreement for convenience and without cause, at any time by giving the other one hundred and eighty (180) days prior written notice. 6 ZZZ. NOTICE AND GENERAL CONDITIONS A. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service or by registered mail addressed to the parties at their respective addresses indicated below or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which personally served, or if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. 1. In the case of notice or communication to LESSOR: The City of Miami Beach Parks and Recreation Department 1700 Convention Center Drive Miami Beach, Florida 33139 With a copy to: City Attorney The City of Miami Beach Attorney's Office 1700 Convention Center Drive Miami Beach, Florida 33139 2. In the case of notice or communication to LESSEE: The School Board of Dade County, Florida c/o Superintendent of Schools School Board Administration Building 1450 N.E. 2 Avenue Miami, Florida 33132 7 With a copy to: Dade County Public Schools Site Planning and Government Liaison Department Attention: Director 1444 Biscayne Boulevard, Suite 302 Miami, Florida 33132 B. Title and Paragraph headings are for convenient reference and are not intended to confer any rights or obligations upon the parties to this Agreement. %III. SIIRRENDER OF PREMISES At the end of the original term or an extension thereof, or upon termination of this Agreement as set forth under Article XI, LESSEE shall promptly and peacefully surrender and deliver possession of the DEMISED PREMISES to LESSOR in its existing condition, normal wear and tear excepted, and in accordance with the covenants herein contained. %IV. NON-DISCRIMINATION LESSEE agrees that there will be non discrimination against any person based upon race, color, sex, religious creed, ancestry, national origin, mental or physical handicap, in the use of the DEMISED PREMISES and improvements thereof. %V. AMENDMENTS LESSOR and LESSEE, by mutual agreement, shall have the right 8 but not the obligation to amend this Agreement. Any and all amendments shall be effective only if in writing and signed and approved by LESSOR and LESSEE and shall be incorporated as part of this Agreement. %VI. CONSTRIICTION OF AGREEMENT This Agreement shall be construed and enforced according to the laws of the State of Florida. YVII. BEVERABILITY In the event any paragraph, clause or sentence of this Agreement or any future amendment is declared invalid by a court of competent jurisdiction, such paragraph, clause or sentence shall be stricken from the subject Agreement and the balance of the Agreement shall not be affected by the deletion thereof. BVIII. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS All parties hereby agree that they shall comply with all applicable laws, ordinances and codes of Federal, State and Local Governments as they apply to this Agreement. ._ %IB. WAIVER No waiver of any provision hereof shall be deemed to have been made unless such waiver be in writing and signed by LESSOR and LESSEE. The failure of any party to insist upon strict performance of any of the provisions or conditions of this Agreement shall not 9 be construed as waiving or relinquishing any such covenants or conditions, but the same shall continue and remain in full force and effect. XX. ENTIRE AGREEMENT This Agreement represents the total agreement between the parties. XXI. SIICCESSORS AND ASSIGN This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. XXII. LIMITATION OF LIABILITY LESSOR and LESSEE desire to enter into this Agreement only if in so doing LESSOR and LESSEE can place a limit on their liability for any cause of action for money damages due to an alleged breach by LESSOR or LESSEE of this Agreement, so that their liability for any such breach never exceeds the sum of $10,000. LESSOR and LESSEE hereby express their willingness to enter into this Agreement with a $1,000,000 limitation on recovery for any damage action for breach of contract. Accordingly, LESSOR and LESSEE hereby agree that LESSOR and LESSEE shall not be liable to each other for damages in an amount in excess of $1,000,000 for any action occurring from breach of contract arising out of the performance or non performance of any application imposed upon the LESSOR or LESSEE by this Agreement. 10 The foregoing provision shall not preclude an action b LESSEE for specific Y LESSOR or performance. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intend be a waiver of ed to the limitations placed upon LESSEE'S or LESSOR'S liability as set forth in Florida Statutes, Section 768.28 %%111. ARBITRATION r Any controversy or claim for money damages arising out of relating to this Agreement, or the breach hereof shall be s °r by arbitration in accordance with the Commercial Arbitrati ettled . of the American Arbitration Association, and the arbitration Rules shall be final and bindin n award g upon the parties hereto and subject to no appeal, and shall deal with the question of the cost of arbitration and all matters related thereto. In that re a parties shall mutually select one arbitrator, but to t g rd, the that the he extent parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Jud the award rendered gment upon may be entered into any court having jurisdiction, or application may be made to such court of enforcement, for an order Any controversy or claim other than a controversy or claim for money damages arising out of or re Agreement or the breach thereof lating to this including any controversy or claim relating to the right to specific performance, shall be s litigation not arbitration. ettled by 11 -.: ~~r~~ ~ t~ ~ ttttl I ~ ~ {~ y; ~ tI Y . • ~ sc ~y ~' ~ i J ~ ~- .'' ~ i / ~.~ ~ . ].. - // ~ '~'_--'~ It r I ~ / ~ I • ~ II~ 4 ,.~` .~ `~ ~,, .` .` .` '~ ~{ ~I NE1N NAllT'1lUS l!!MY C [1~a.ww. LLL~1' TTT-~1.. _= ~.1111.f~ 1i ,_:r- ,111-1 ---.--__ k „~r b.~,~ 1 ~_ ~ c v~. c. ~, .:..^ /~. ~y-~ I~a~ ~~,, f ,~, ,~ a~ / \ FutuRE ao~ ~~~x .~~ ,~ ~ ~ ~ / ~ ~ ~.`\ ~~. ~ O '~ ~~. f ~~ ~~ ^i ua~rw~~^ _,~ ~... 71TT1-CH [~iENT ;9 LIBT OF IMPROVE MEN1'9- ~Y LE88ElC The LESSEE hereby agrees to ~:on:~t:::~uct, at its sole expense, ir7 accordance with applicable Department oaf Education standards, the following improvements: 1. four regulation hard s'irf~ic:{:: basketba:.l courts Z . four regulation hard c Puri: i:.~:nnis cou:: is 3 . two outdoor racquetball cc~ti;: is 4 . grass softball field aid +sc>::'tball backstop 5 . tot lot (including new eq~~:.~:~ment) Both parties agree that the sp+ac::i.fications Por the above improvements shall be found in the sE:~t: of construction drawings and documents for this project. ae~a~v~µ~r.K~a