HomeMy WebLinkAboutReso 2024-3759RESOLUTION NO. 2024 -
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,
FLORIDA, APPROVING THE USE AND OCCUPANCY AGREEMENT, AND THE
ADDENDUM THERETO, WITH THE FLORIDA DEPARTMENT OF TRANSPORTATION
FOR PUBLIC PARKING AND OTHER PUBLIC PURPOSES ON PARCEL 653, LOT 3
LOCATED UNDERNEATH THE WILLIAM LEHMAN CAUSEWAY, ATTACHED HERETO
AS EXHIBIT "A"; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT,
AUTHORIZING THE CITY MANAGER TO DO ALL THINGS NECESSARY TO
EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Florida Department of Transporta?on ("FDOT") owns property located in
the right-of-way underneath the William Lehman Causeway/State Road 826, known as Parcel 653,
Lot 3 (the "Property"), in the City of Sunny Isles Beach (the "City"); and
WHEREAS, the City desires to enter into an Agreement with FDOT to lease the Property,
subject to the terms and condi?ons of the Use and Occupancy Agreement, a? ached hereto as
Exhibit "A".
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES
BEACH, FLORIDA:
Sec?on 1. Approval of the Use and Occupancy Agreement. The City Commission hereby
approves the Use and Occupancy Agreement with the Florida Department of Transporta?on for
Parcel 653, Lot 3 located underneath the William Lehman Causeway/State Road 856, a? ached
hereto as Exhibit "A".
Sec? on 2. Authoriza?on of Mayor. The Mayor is hereby authorized to execute said
Agreement.
Sec?on 3. Authoriza?on of City Manager. The City Manager is hereby authorized to do all
things necessary to effectuate this Resolu?on.
Sec? on 4. Effec?ve Date. This Resolu?on shall become effec?ve upon passage.
PASSED AND ADOPTED this 211t day of
Larisa Svechin, Mayor
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ATT4Betanc
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
MauMC, City Clerk Alain E. Boileau, for Nabors, Giblin &
Nickerson, P.A., City Attorney
Moved by: ill/, IP�N gP 71L%� seconded by:
Vote:
Mayor Svechin
✓(Yes)
(No)
Vice Mayor Lama
Yes)
(No)
Commissioner Joseph
4Yes)
(No)
Commissioner Stuyvesant
(Yes)
—;;��"(Yes)
(No)
Commissioner Viscarra
(No)
@BCL@8C0B6B17.docx Page 2 of 2 516
23 CFR, Part 710 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 575-060-32
USE AND OCCUPANCY AGREEMENT RIGHT OF WAY
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ITEM/SEGMENT NO.: 248831-1
MANAGING DISTRICT: Six
F.A.P. NO.: N/A
STATE ROAD NO.: A1A & 856
COUNTY: Miami -Dade
PARCEL NO.: 653 (Lot 3)
THIS AGREEMENT, made this day of between
CITY OF SUNNY ISLES BEACH. a Florida Municipal Corporation
at City of Sun Isles Beach, 18070 Collins Avenue, Sunny Beach, Florida 33160
(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 State Road Al A & 856
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 a part hereof for the following purpose: Parking of motor vehicles
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.
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 N/A
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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b. The Department reserves the right to review and adjust the rental fee biannually and at renewal to reflect market
conditions.
c. All rental payments are to be made by check or money order, payable to the State of Florida Department of Transportation
and delivered on or before the due date to: 1000 NW 1111 Avenue, R/W Administration, Rm. 6105-B, Miami Florida 33172, Attention
Property Management.
d. Lessee shall be responsible for all state, county, city, and local taxes that may be assessed, including real property taxes
and special assessments. In the event that no rent is specified herein, then it has been determined that either the use by Lessee is a
nonproprietary use by a governmental agency or an exception from the current fair market rental value requirement (23 U.S.C. Section
156) has been obtained for social, environmental, or economic mitigation (SEE) purposes. In the event that it should be determined at
any time that the use is not a nonproprietary use by a governmental agency or that the SEE exception does not apply or has been
revoked, Lessee agrees to pay, at that time, rent as determined to be the fair market rental value by an independent appraiser certified
by the Department, and Lessee further agrees to pay such rent, under the remaining terms and conditions of this Paragraph 3, for the
remaining term (including renewals) of this Agreement.
e. 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: Parking for motor vehicles
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.
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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.
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
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Lessee, its employees, agents, contractors, customers, licensees, and invitees. Such insurance shall be carried in a minimum amount
of not less than one million dollars ($ 1,000,000.00 ) for bodily injury or death to any one person or any number of persons in
any one occurrence and not less than one million dollars ($ 1,000,000.00 ) for property damage, or a combined
coverage of not less than two million dollars ($ 2,000.000.00 ). All such policies shall be issued by companies licensed
to do business in the State of Florida and all such policies shall contain a provision whereby the same cannot be canceled or modified
unless the Department is given at least sixty (60) days prior written notice of such cancellation or modification. Lessee shall provide
the Department certificates showing such insurance to be in place and showing the Department 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 may be terminated by either party without cause upon thirty------ ( 30 ) days prior written notice to the
other party.
b. It is understood and agreed to by the Lessee that the Department reserves the right to terminate this Agreement
immediately without prior notice, in the event the Lessee violates any of the conditions of this Agreement and such violation is not
corrected within a reasonable time after written notice of noncompliance has been given. In the event the Agreement is terminated and
the Department deems it necessary to request the removal of the facility on the property, the removal shall be accomplished by the
Lessee in a manner prescribed by the Department at no cost to the Department or the FHWA.
c. The Lessee must notify the Department of its intention to renew this Agreement not later than thirty (30) days prior to the
expiration of the original term. Lessee's failure to comply with the foregoing notice provision may result in the Department's refusal to
renew the Agreement.
d. Upon termination of this Agreement, Lessee shall deliver the property to the Department, or its agents, in the condition
existing at the commencement of this Agreement, normal wear and tear excepted, unless a facility, any improvement, or any part
thereof has been constructed on the property.
e. If removal of the facility, improvements, or any part thereof is requested by the Department, any such structures shall be
removed by the Lessee at Lessee's expense by midnight of the day of termination of this Agreement and the property restored as
nearly as practicable.
f. This Agreement is terminable by the Department in the event that the facility ceases to be used for its intended purpose, is
abandoned, or if use of the facility is required by the Department for transportation, maintenance or emergency purposes.
8. Eminent Domain
Lessee acknowledges and agrees that its relationship with the Department under this Agreement is one of landlord and tenant
and no other relationship either expressed or implied shall be deemed to apply to the parties under this Agreement. Termination of this
Agreement for any cause shall not be deemed a taking under any eminent domain or other law so as to entitle Lessee to compensation
for any interest suffered or lost as a result of termination of this Agreement, including any residual interest in the Agreement or any
other facts or circumstances arising out of or in connection with this Agreement.
Lessee hereby waives and relinquishes any legal rights and monetary claims which it might have for full compensation, or
damages of any sort, including special damages, severance damages, removal costs, or loss of business profits, resulting from
Lessee's loss of occupancy of the property specified in this Agreement, or any such rights, claims, or damages flowing from adjacent
properties owned or leased by Lessee as a result of Lessee's loss of occupancy of the property specified in this Agreement. Lessee
also hereby waives and relinquishes any legal rights and monetary claims which it might have for full compensation, or damages of any
sort as set out above, as a result of Lessee's loss of occupancy of the property, when any or all adjacent properties owned or leased by
Lessee are taken by eminent domain proceedings or sold under the threat thereof. This waiver and relinquishment applies whether this
Agreement is still in existence on the date of taking or sale or has been terminated prior thereto.
9. Miscellaneous
a. The 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)
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that the Lessee shall use the property and facility in compliance with all other requirements imposed pursuant to 49
CFR part 21..
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.
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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 placed on the convicted vendor list following a conviction for a public entity
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.)
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above written.
CITY OF SUNNY ISLES BEACH
LESSEE (Company Name, if applicable)
By:
Name: sjgft l
/W 49
Title: 4-'11% U7m
Attest: (Seal)
Name: UO bCT(h4Wa-
Title: l/0 � CA (1 --
By:
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
District Secretary
Name: Stacy L. Miller
Attest:
Name/Title: Helen Bosaue, Assitant to District Secretary
Legal Review:
District Counsel
Name: Michelle Garrido, Esq., Senior Attorney
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ADDENDUM
This is an Addendum to that certain Right of Way Use and Occupancy Agreement between DO NOT SIGN -SEE ADDENDUM
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:
DO NOT SIGN
THIS ADDENDUM NOT USED
SEE SEPARATE ADDENDUM
LESSEE (Company Name, if applicable)
By: tiz:K—
e4��
Name: tkW1z-9—Jl`S
Title: "1� 1 ' �i! AYP10&6L
Attest:
Name: n'
Title: vt
STATE OF FLORIDA
DEPARTMENT OF TRANSPORTATION
By:
District Secretary
Name
Attest:
Name/Title:
Legal Review:,
District Counsel
Name:
524
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO USE AND OCCUPANCY AGREEMENT
Item/Segment No.
Managing District
F.A.P. No.
State Road
County
Parcel No.
RECITALS
2488311
Six
N/A
A1A & 856
Miami -Dade
653 (Lot 3)
THIS ADDENDUM ("Addendum") made effective this date:
("Effective Date") is an Addendum to that certain Use and Occupancy Agreement between the
State of Florida Department of Transportation ("Department" or "Lessor") and City of
Sunny Isles Beach ("Lessee") (collectively, the "Parties") dated
WHEREAS, the Parties previously entered into a Lease Agreement for Parcel 653 &
654 (the "Leased Property") on May 5, 2021 (the "Current Lease Agreement");
WHEREAS, the Department's contractor for the bridge repair and rehabilitation project
identified as FDOT Project FM No. 441965-1-52-1 (the "Project") needed Parcel 653 for a
staging area. A Vacate Report and Notice of Termination of Lease for Parcel 653 was
executed on May 1, 2023, and the Current Lease Agreement for Parcels 654 and 653 was
amended to remove Parcel 653 from the Current Lease Agreement. Construction of the
Project has been completed and the Project has been closed out and the Leased Property is
no longer being used for staging for the Department's Project;
WHEREAS, the Department and Lessee have now entered into a new Use and
Occupancy Agreement ("Lease") as of the Effective Date, whereby the Department has leased
the Leased Property to Lessee pursuant to the terms and conditions of the Lease and this
Addendum;
WHEREAS, the Parties desire to amend and supplement certain terms of the Lease as
provided herein;
WHEREAS, in addition to the provisions contained in said Lease, the following terms
and conditions shall be deemed to be a part thereof; and
NOW THEREFORE, in consideration of the covenants, promises, understandings, and
agreements made by each Party to the other as set forth herein, Lessor and Lessee do hereby
mutually agree as follows:
Page 1 of 6
525
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO USE AND OCCUPANCY AGREEMENT
Item/Segment No.
Managing District
F.A.P. No.
State Road
County
Parcel No.
AGREEMENT
2488311
Six
N/A
Al A & 856
Miami -Dade
653 (Lot 3)
1. The Recitals set forth above are incorporated into and are made a part hereof.
2. Paragraph 2: Term, is hereby deleted and is replaced with the following:
Lessor does hereby lease unto Lessee the property described in Exhibit "A," attached
hereto and made a part hereof, for a term of approximately six (6) years beginning with the
Effective Date and ending May 31, 2030 (the "Expiration"). If Lessee desires to continue
leasing the Leased Property, Lessee shall provide written notice to Lessor at least one
hundred eighty (180) days prior to the Expiration of the Lease. If Lessor, in its sole
discretion, and in accordance with Lessor's procedures, determines that the Leased
Property continues to be available for lease, a new Lease will be required. The Lessee's
failure to comply with the foregoing 180 -day notice provision may result in the Lessor's
refusal to enter into a new Lease.
If Lessee holds over and remains in possession of the Leased Property after the Expiration
of the term specified in this Lease, Lessee's tenancy shall be considered a tenancy at
sufferance, subject to the same terms and conditions as herein contained in this Lease.
This Lease is subject to all utilities in place and to the maintenance thereof as well as any
other covenants, easements, or restrictions of record.
This Lease shall be construed as a lease of only the interest, if any, of Lessor, and no
warranty of title shall be deemed to be given herewith.
3. Paragraph 3: Rent, Paragraph 3.a. and 3.e. are hereby deleted in its entirety and replaced
with the following:
a. On the first business day after the last day of each quarter, the Lessee shall pay
Lessor, as rent, forty (40%) percent of all gross revenues collected from the use of the
property for public parking. "Gross revenues" shall be described as any and all revenues
received from the Lessee as a result of the use of the Leased Property, including, but not
limited to, metered parking, parking for fee, recreational and vending concessions, if any,
and fees and/or rent collected from a sublessee which sublease shall have been approved
by the Lessor. The first quarter shall commence on November 1, 2024 and all subsequent
quarters shall commence on three (3) month intervals thereafter, being February 1, May 1,
and August 1. Lessee shall bear all expenses and operational costs. Lessee shall also pay
to Lessor any state, county, city, or local taxes which may be applicable. If this Lease is
terminated prior to the end of any rent payment period, the unearned portion of any rent
payment, less any other amounts that may be owed to Lessor, shall be refunded to Lessee
Page 2 of 6
526
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO USE AND OCCUPANCY AGREEMENT
Item/Segment No
Managing District
F.A.P. No.
State Road
County
Parcel No.
2488311
Six
N/A
A1A & 856
Miami -Dade
653 (Lot 3)
in a reasonable time period. However, no such refund shall be made where termination is
due to Lessee's violation of a term or condition of this Lease.
Each quarterly payment shall be accompanied by a sworn statement which shall state the
total amount of revenues for the period covered and the computation of Lessor's portion. In
addition, the Lessee shall provide the Lessor with a quarterly statement of the proceeds for
each preceding quarterly period, this annual statement to be signed by a Certified Public
Accountant. The Lessee shall pay such rent and submit all revenue reports required by this
arrangement to the address in Section 3 of the Lease Agreement.
The Lessee shall maintain a set of books, accounts and records covering the operations
that are subject to this Agreement. Said books, accounts and records shall be of the same
types, and kept for a period, as those customarily used in these types of operations in
accordance with accepted accounting practices and standards. Lessor shall be permitted
upon three -business days prior to written notice to Lessee to examine and audit, during
ordinary business hours, by or through its officers, employees or representatives of the
Lessor, such records and books of account.
e. Late fees, if any, may be classified as additional rent if not paid when demanded and
may be included in any Three -Day notice served on the Lessee pursuant to Section 83.20,
Florida Statutes. This provision shall not obligate the Department to accept late rent
payments or provide Lessee a grace period. Any checks for rent which are returned for
insufficient funds shall incur a late charge of 5% in addition to a minimum service fee of $15
or 5% of the face amount of the check, whichever is greater. The bank service fee for
returned checks shall not exceed $150. Any such charges of fees may be classified as
additional rent and included in any Three -Day Notice served on the Lessee. This provision
shall not obligate the Department to accept late rent payments or provide a grace period.
4. Paragraph 4: Use, Occupancy, and Maintenance, Paragraphs 4.k., 4.1. and 4.m. are
hereby deleted in their entirety and replaced with the following:
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 (i) for any illegal business use or
purpose, (ii) for the manufacture or storage of flammable, explosive, hazardous material, or
regulated substances of any kind, (iii) for any other hazardous activity, (iv) in such manner
as to constitute a nuisance or risk of any kind, nor (v) for any purpose or in any way in
violation of any present or future federal, state, or local laws, orders, directions, ordinances,
or regulations. Any structures, buildings, facilities, or appliances which utilize combustible
materials (including, but not limited to, wood, wood fiber, plastic, etc.) that may be fire
hazards are also prohibited.
Page 3 of 6
527
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO USE AND OCCUPANCY AGREEMENT
Item/Segment No.
2488311
Managing District
Six
F.A.P. No.
N/A
State Road
A1A & 856
County
Miami -Dade
Parcel No.
653 (Lot 3)
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. If Lessee becomes aware of the existence of any potentially
hazardous materials, substances, or activities under the William Lehman Causeway Bridge
(the "Bridge") structure, Lessee shall immediately notify Lessor. Lessee shall be held
responsible, at Lessee's sole cost and expense, for any and all damages and personal
injury resulting from hazardous materials, substances, or activities and for the performance
of and payment for any repair, replacement, or other 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 hazardous materials, substances, or activities referenced
herein.
m. Existing utilities and easements upon, under, over, or within the leased property shall
remain in place. Lessee shall allow any utility owner to access and enter upon the leased
property in order to perform maintenance on said utility. Lessee shall not disturb or interfere
with said utilities or easements. If a utility owner which has a utility that is placed upon,
under, over, or within the leased property determines, in its sole discretion, that the
Lessee's use of the leased property to be interfering in any way with the convenient, safe,
or continuous use, or the maintenance, improvement, extension, or expansion, of such
utility, the Lessee shall, upon reasonable written notice to Lessee by the Department,
initiate any work necessary to cease any activities interfering with the utility and/or remove
any improvements or other personal property ("Obstructions") from the leased property at
Lessee's sole cost and expense. The work must be completed within such reasonable time
as stated in the notice or such time as agreed to separately by the utility owner and Lessee.
Notwithstanding the foregoing, in the event of emergency maintenance by a utility owner,
immediately upon notice to Lessee by the Department, the Lessee shall cease any
activities interfering with the utility and/or remove any Obstructions from the leased property
at Lessee's sole cost and expense. In the event Lessee fails to do so, the utility owner may
enter the leased property and, with no obligation to repair or replace same, has the right to
stop any activities interfering with the utility and/or remove or demolish any Obstructions on
the leased property at the sole cost and expense of Lessee. Lessee shall hold harmless the
Department from any claim, loss, damage, cost, charge, or expense arising out of actions
by utility owners under this paragraph.
Page 4 of 6
528
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO USE AND OCCUPANCY AGREEMENT
Item/Segment No
Managing District
F.A.P. No.
State Road
County
Parcel No.
2488311
Six
N/A
A1A & 856
Miami -Dade
653 (Lot 3)
The following paragraphs are added to the end of Paragraph 4: Use, Occupancy, and
Maintenance:
n. Parking Lot Hours of Operation and Parking Fees: The Lessee agrees to maintain and
operate the public parking in accordance with the schedule attached as Exhibit "C". Any
changes in the schedule shall require written approval from Lessor.
o. As of the Effective Date of this Lease, the following improvements exist on the Leased
Property and shall be maintained by Lessee at its sole cost and expense at all times: paved
parking, signage, landscaping, lighting and fencing as permitted by a Department permit.
p. Public Parking / Beach Access Signage: The "Signage Areas" is defined as those
areas located under the Bridge, all access roads immediately surrounding the Leased
Property, and directional signs on State Road A -1-A. The Lessee shall provide, install, and
maintain signage at pertinent and conspicuous locations in the Signage Areas clearly
directing the public to the public parking lots and public beach access areas. Signage and
their locations will be in accordance to a "Signage Site Plan" submitted for review and
approval by the Lessor prior to the installation of any signage in the Signage Areas. Lessee
further agrees that the installation of signage in the Signage Areas shall be performed
pursuant to and in accordance with all necessary permits, as required, from all applicable
state and local agencies.
5. Paragraph 9: Miscellaneous, is hereby added to include the following:
t. Lessee will be responsible for compliance with all government regulations and to obtain
any necessary licenses, permits, or other authorization for its use of the Leased Property.
u. Neither Lessor nor Lessee shall record this Lease or this Addendum in the Public
Records.
6. Except as modified in this Addendum, all other terms and conditions of the Lease remain
unchanged and are hereby confirmed and ratified by the Lessee and the Lessor. Where the
terms of this Addendum conflict with the definitions, provisions or terms of the Lease, this
Addendum shall control.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
Page 5 of 6
529
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
ADDENDUM TO USE AND OCCUPANCY AGREEMENT
On behalf of Lessee
CITY OF SUNNY ISLES BEACH
Name:
'Title: G I T
Attest:
Name: '440y, 4ua
Title:
Item/Segment No.
Managing District
F.A.P. No.
State Road
County
Parcel No.
On behalf of Lessor
2488311
Six
N/A
Al A & 856
Miami -Dade
653 (Lot 3)
STATE OF FLORIDA DEPARTMENT
OF TRANSPORTATION
District Secretary
Name: Stacy L Miller, P.E.
Attest:
Name/Title: Helen Bosque
Assistant to the District Secretary
Legal Review:
District Counsel
Name: Michelle Garrido, Esq.
Senior Attorney
Page 6 of 6
530
Provisional Exhibit "A"
State Road No.: 856
Miami -Dade County
Miami, Florida
Parking Lot 3
April 15, 1999
Description of.a parcel of land for the sole purpose of leasing
this parcel of land from the Florida Department of Transportation
to the City of Sunny Isles Beach. -
LEGAL DESCRIPTION
That portion of State Road No. 856 Right -of -Way as shown on the
State of Florida Department of Transportation Right -of -Way Map for
Section 87613-2509 lying in Section 2, Township 52 South, Range 42
East, Miami -Dade County, Florida, being more particularly described
as being bounded on the South Side by the North face of an existing
retaining wall on the North side of Pier 32 approximately at
Station 291-x84 of the Baseline for Ramp "B", as shown on State of
Florida Department of Transportation Plans for- State Highway
Project No. 87013-3511 for State Road No. 852 (now known as State
Road No. 856) on Sheets 13 and 14 (said station corresponding to
Station 61+92 on the centerline of State Road A -1-A of said plans
for project No. 87013-3511); bounded on the East, West and North
sides by the back line of curb of a continuous concrete curb and
gutter (said North side being a radial return of 30 feet whose
radius center point is at 23.35 feet West of Station 65+74.76 as
per said centerline for State Road A -1-A); all of the above
described parcel lying under the overpass for Ramp "B" and its
shadows, as shown on said plans for.Project No. 87013-3511.
Less any area actively occupied by bridge Piers or any part of
bridge structures.
Containing 27,669 square feet (0.64 acres), more or less.
531
H1'P%)} Q'1¢
VfrY 9f SUN l.'•SV
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947-0606 City Hall
(305) 949-3113 Fax
MEMORANDUM
TO: Honorable Mayor and City Commissioners
VIA: Stan Morris, City Manager
FROM: Wendy Bednarz, Assistant to Deputy City Manager
DATE: November 21, 2024
RE: Approval of a Use and Occupancy Agreement with the Florida Department of
Transportation for Parcel 653, Lot 3, located at State Road A1A & State Road
856
RECOMMENDATION:
Staff recommends approval of this Resolution.
REASONS:
On April 15, 2021, the City of Sunny Isles Beach entered into an agreement with the Florida Department
of Transportation (FDOT), for a ten-year lease of Parcels 653 and 654 located in the right-of-way under
the Lehman Causeway Bridge. On January 18, 2024, the lease was revised to exclude Parcel 653 and
only allow city use of parcel 654 as FDOT needed use of Parcel 653 for their work to refurbish the
William Lehman Causeway. FDOT work has been completed and they are now in agreement to return
the lot to the city for continued use as a public parking lot. Execution of the occupancy and use
agreement for parcel 653 is required for continued use of the property. Under this new agreement the
same terms apply to cost share the parking revenues with FDOT with 40% of proceeds remitted to them
quarterly.
The expiration of this lease agreement is May 31, 2030.
FUNDING SOURCE:
Lease payment (Rent) is collected through revenues collected by public parking. Rent amounts to forty
(40%) percent of gross revenue from the leased property and paid to the State quarterly.
ATTACHMENTS:
Item Number: 9.13
513
Resolution
Use and Occupancy Agreement
Item Number: 9.P
514