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HomeMy WebLinkAboutReso 2015-2371 RESOLUTION NO. 2015-23'7 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING A FIRST AMENDMENT TO THE LICENSE AGREEMENT BETWEEN THE CITY OF SUNNY ISLES BEACH AND CHATEAU BEACH, LLC, IN SUBSTANTIALLY THE SAME FORM ATTACHED HERETO AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE SAID FIRST AMENDMENT; AUTHORIZING THE CITY ATTORNEY AND THE CITY MANAGER TO DO ALL THINGS NECESSARY TO EFFECTUATE THE TERMS OF THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Chateau Beach, LLC ("Chateau Beach") is the owner of the property located at 17475 Collins Avenue; and WHEREAS, Chateau Beach obtained zoning approval from the City of Sunny Isles Beach(the "City")to construct a 35 story, 84 unit condominium building (the "Project"); and WHEREAS, the parties entered into a License Agreement on May 30, 2012, (the "License Agreement") in order to allow Chateau Beach to use Samson Oceanfront Park (the "Property") for Project staging purposes; and WHEREAS, the License Agreement requires Chateau Beach to restore the Property to its original condition prior to being used for Project staging purposes; and WHEREAS, the City is planning more extensive improvement beyond its original condition of Samson Park, and the City desires that these improvements be constructed along with the entire park rehabilitation project which will be overseen and funded by the City; and WHEREAS, the parties desire to amend the License Agreement to allow Chateau Beach to pay Three Hundred Thousand Dollars ($300,000.00) to the City in lieu of restoring the Property to its original condition prior to being used for Project staging purposes. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH,FLORIDA,AS FOLLOWS: Section 1. Approving the First Amendment to the License Agreement. The First Amendment to the License Agreement between the City of Sunny Isles Beach and Chateau Beach, LLC, is hereby approved in substantially the same form as the attached Exhibit"A". Section 2. Authorization of City Manager. The City Manager is hereby authorized to execute the First Amendment to the License Agreement in substantially the same form as the attached Exhibit"A". Approving First Amendment to License Agreement Page 1 of 2 Section 3. Authorization of City Manager and City Attorney. The City Manager and City Attorney are authorized to do all things necessary to effectuate the terms of this Resolution. Section 4. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 1S4 day of �.. , '.�, 2015. 0 George . Scholl, Mayor ATTEST: 411111 I'CV*A: it .■ Jane • . Hines, MMC, City Clerk APPROV D AS TO FORM AJJ(A .Ei I A SUFFICIENCY: ttino t, Cty Attorney Moved by: G U0 Seconded by: v L Ce VI\t t — G D Vote: 6-0 J Mayor Scholl ✓(Yes) (No) Vice Mayor Gatto /(Yes) (No) Commissioner Aelion V(Yes) (No) Commissioner Goldman V/ Yes) (No) Commissioner Levin (Yes) (No) Approving First Amendment to License Agreement Page 2 of 2 0`0,,NNY ,4, �' a'z CITY OF SUNNY ISLES BEACH '% `�. LICENSE AGREEMENT c',,O.fuM'NO This License Agreement ("Agreement")is made as of the 3o day of .. 2012, by and between the CITY OF SUNNY ISLES BEACH, a municipal corporation ("Cit ") and Chateau Beach,LLC, a Florida limited liability corporation ("Chateau Beach"). RECITALS Whereas, Chateau Beach is the owner of the property located at 17475 Collins Avenue;and Whereas, Chateau Beach has obtained zoning approval from the City to construct a 35 story, 84 unit condominium building(the"Project") on the Property; and Whereas, Chateau Beach has approached the City about entering into a license agreement to use Samson Oceanfront Park(the"Property")for staging purposes;and Whereas, the City desires to enter into this license agreement with Chateau Beach for staging purposes, which includes but is not limited to storing of materials, parking vehicles, air rights within the staging area and related construction activities. NOW, THEREFORE, in consideration of Ten. Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein in their entirety. 2. Use of Property. The City hereby grants a license to Chateau Beach the right to use a limited area on the northern side of Samson Oceanfront Park located at 17425 Collins Avenue for staging purposes (the "staging area."). See attached Exhibit"A". The property shall not be used for any other purpose, except for staging purposes, which includes but is not limited to storing of materials, parking vehicles, air rights within the staging area and related construction activities. The City and Chateau Beach agree to work together to prepare the staging area for use by Chateau Beach. The City and Chateau Beach shall work on a plan before mobilization to relocate trees in the park. 3. Term. This License Agreement shall commence from the date of mobilization. The term mobilization means the closure of the staging area of the park for the purpose described in Section 2 above and shall terminate no later than twenty four(24)months from mobilization, Chateau Beach shall provide the City with fifteen (15) days notice before using the staging area. Upon mutual assent, the parties may agree to extend the term of this Agreement. 4. License Fees.. As consideration for this Agreement and in lieu of constructing a band ELI 1$ EXHIBIT "A" n,'_ k`c shell at Samson Oceanfront Park, Chateau Beach agrees to pay to the City the amount of Four Hundred Thousand Dollars($400,000.00) not later than six (6) months from the issuance of a building permit for the Project or mobilization,whichever comes first. 5. Relocation and installation of playground equipment in Samson Park and Flag Pole. Chateau Beach agrees to relocate or pay for the relocating of the existing playground equipment in Samson Oceanfront Park to another park area to be designated by the City up to Thirteen Thousand Dollars ($13,000.00) for relocation and the City shall be responsible for the installation of the old equipment. In addition, subject to the approval of the City, Chateau Beach agrees to install new playground equipment identical or similar with the previous playground equipment with a canopy covering in the same area that the old equipment was located in Samson Oceanfront Park upon the completion of all renovations of Samson Oceanfront Park as set forth in Paragraph 6 below, Chateau Beach agrees to relocate the existing flag pole located in the staging area to an area on the South side of Samson Oceanfront Park as designated by the City, 6. Renovation of Samson Park. Subject to approval of the City, Chateau agrees to replace with new plants and trees all landscape and property of the City damaged within staging area during the staging period. Subject to approval of the City,.Chateau shall either replace or restore the walk path around the entire park to ensure that the walk path is consistent with the quality of the new walk path on the northern side of Samson Oceanfront Park. If the City determines that restoration is not acceptable, Chateau Beach shall replace the entire walk path. Chateau further agrees that Samson Oceanfront Park must be repaired to look in the same condition that existed prior to the staging activities at Samson Oceanfront Park. The renovation shall be completed prior to the termination of this Agreement. Should the City decide to upgrade the entire walk path, the City agrees to pay the differential cost between restoring the path as is and the more costly alternative. 7. Construction Parking. Upon request, the City will provide Chateau Beach the use of up to fifty (50) parking spaces, depending on availability of parking spaces with certain blackout dates, at the parking lot located directly behind the Walgreens at 17534 Collins Avenue, at a monthly negotiated monthly price equal to what other contractors are paying for similar parking spaces. If parking spaces are not available in the Walgreens lot,the City will work with Chateau.Beach to find alternative parking spaces. 8. Relocating display name of Samson Oceanfront Park. If the north wall is damaged during the term of this Agreement, Chateau Beach shall restore to its original condition the front wall and the display where the name of Samson Oceanfront Park is displayed. 9. Current conditions to mitigate its expenses, Chateau Beach shall prepare a picture portfolio of the park to confirm the current conditions of Samson Oceanfront Park prior to using the staging area. The picture portfolio shall be provided to the City prior to mobilization. 10. Naming.rights. Chateau Beach shall have the naming rights for the band shell to be located at a Gateway Park subject to the approval of the City. 11. Assignment. This Agreement may not be assigned or sublet by Chateau Beach, in whole or in part,without prior written consent of the City. 12. Improvements. No structures or improvements of any kind other than the staging area shall be constructed by Chateau Beach inside Samson Oceanfront Park without the prior written approval of the City. 13. Maintenance. Chateau Beach shall keep and maintain the staging area inside Samson Oceanfront Park in good and safe condition, including the regular removal of all litter and trash,and repair any damage to Samson Oceanfront Park caused by Chateau Beach's employees,agents, and subcontractors. Chateau Beach's construction fence shall be equipped with the proper canvas to shield the interior of the staging area from the park. 14. Indemnification., This Agreement is one of licensing of property and is not a bailment. Chateau Beach shall assume full responsibility for the staging area defined herein. Chateau Beach hereby waives all claims against the City, its agents, servants or employees for loss, theft or damage to property in, on or about Samson Oceanfront Park. To the extent permitted by law, Chateau Beach shall indemnify, defend and hold the City, its employees and public officials, agents, and servants harmless from, and on account of, any damage or injury to any person, or to the property,goods, wares and merchandise of any person, arising from the use of Samson Oceanfront Park by Chateau Beach, including its agents, servants, employees, contractors, invitees or licensees. 15. Assumption of Risk. Consistent with paragraph thirteen above and not as a limitation of the aforementioned paragraph, all property belonging to Chateau Beach or any user of the staging area inside Samson Oceanfront Park shall be there at the risk of Chateau Beach or such other person only Except for the deliberate or negligent act of the City or its agent or employees, the City, its employees and public officials, and agents, shall not be liable for injury to persons, or damage to, or theft of, or misappropriation of such property by any means whatsoever. Chateau Beach shall give prompt notice to the City in case of any such injury, damage, theft, or misappropriation. In case any action or proceeding should be brought against the City by reason of any obligation on Chateau Beach's part to be performed under the terms of this Agreement or arising from any act or negligence of Chateau Beach,or of its agents or employees, Chateau Beach,upon notice from the City, shall defend the City at Chateau Beach's expense, by counsel reasonably satisfactory to the City. 16. Compliance with Law. Chateau Beach shall comply with all applicable state, county and City laws and ordinances in fulfilling its responsibilities under this Agreement. 17. Default and Penalties. In the event of any default by either party under this Agreement, the non-defaulting party shall have the right to terminate this Agreement upon thirty (30) days written notice to the defaulting party. During this 30 day period,the defaulting party shall have the opportunity to cure the default. However, if the default remains uncured at the expiration of the 30 day period, the non-defaulting party may terminate this Agreement. No provision of this Agreement is intended, nor shall any be construed,as a covenant of any official (either elected or appointed), director, employee or agent of the City in an individual capacity and neither shall any such individuals be subject to personal liability by reason of any covenant or obligation of the City hereunder. If Chateau Beach does not complete the renovations of Samson Oceanfront Park within the term of this Agreement, Chateau Beach shall pay a Fifty Thousand Dollar($50,000.00)per day penalty to the City. 18. Attorneys Fees. In the event of any dispute arising out of or related to this Agreement,the City shall be entitled to receive from Chateau Beach the reasonable attorneys' fees,costs. and disbursements and court costs incurred by the City through the trial and all appellate levels and including any of same incurred in connection with enforcement of judgments and other collection costs. 19. Binding. The provisions of this Agreement shall be binding upon the parties thereto and their respective successors and/or assigns. 20. Severability. The terms of the Agreement are independent of and severable from each other, and neither this Agreement nor any provision shall be affected or rendered invalid or unenforceable by virtue of the fact that any other or others of them may be invalid or unenforceable, in whole or in part for any reason. 21. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Any action, in equity or law, with respect to this Agreement must be brought and heard in Miami-Dade County. 22. Independent Relationship., This Agreement does not evidence the creation of, nor shall it be construed as creating, a partnership or joint venture between the City and Chateau Beach cannot create any obligation or responsibility on behalf of the City or bind the City in any manner. Each party is acting for its own account, and it has made its own independent decisions to enter into this Agreement and as to whether the same is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. Each party acknowledges that none of the other parties hereto is acting as a fiduciary for or an adviser to it in respect of this Agreement or any responsibility or obligation contemplated herein. 23. Force Maieure. Should Chateau Beach fail to perform its obligation under this Agreement due to a condition of force majeure, as that term is interpreted under Florida Law, and specifically including Acts of God, including hurricanes,fire, flood,earthquakes tropical storms and/or very strong storms which are anticipated by the Parties and taken into consideration as to the expiration of the term., then the time for performance of said obligation hereunder will be extended by a period reasonable commensurate with the cause of such failure to perform or cure. If Chateau Beach is „ J , v,, , , delayed in performing any obligation under this agreement due to a force majeure condition, Chateau Beach shall request a time extension from the City within ten (10)working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement. Events of force majeure do not include acts or omissions of Chateau Beach. 24. Amendment. This Agreement may not be amended, unless evidenced in writing and executed by all Parties hereto. 25. Captions. The captions and headings of sections or paragraphs used in this Agreement are for convenient references only and shall not limit, define or otherwise affect the substance or construction of provisions of this Agreement. 26. Entire. Agreement. This Agreement constitutes the entire agreement between the parties and may not be changed, altered or modified except by an instrument in writing signed by the party against whom enforcement of such change would be sought. IN WITNESS WHEREOF, Chateau Beach, LLC and the City of Sunny Isles Beach have executed this Parking License Agreement as of the day and year first above written. WITNESS: C ► BEA® LC By: L1iL'.#1 !dal Printed Manuel Grosskopf �a E' . - f$t'1cirI Managing Membe ATTEST CITY OF SUNNY ISLES BEACH BY: BY: Jane A.Hines,,CMC, City Clerk Alan J. C en City Manager APPROVED AS TO FORM AND LEGAL , e F • EE' CY B (4kA1 ans Ottrnot, City Attorney Y;' 11�";v1 4 t -� ..tio Z. ���r I ! Z. , , `c��C,` . - `'°+\Pyle{ '. 1• a . . %:` . . . Q. _iimm. �_ ti �. . . . A 4\ IIIIIIIIII� O. z .� — s" ii �. ' I ` J � ,, , . •a ti � .0 0 0 0 .,., 3.. \2, It i .. /.. I . . &,) Y . . . . . . .--.1,1.3 ., IT •--,!..:“-* : II ' -. %*, t' 0 0 f 4.4' ,, 1,4- ).cf, : . . * A:00117. 7,1;-Ai 110 cil z.1 /,• � I_ ; is 1 1 i �a � 1 1111 1 i / / 1 �5 1 i 1 JI S61y97034 •100./2' i:f Y Nee rt FIRST AMENDMENT TO THE LICENSE AGREEMENT a' t0*. BETWEEN THE CITY OF SUNNY ISLES BEACH y "fir fit AND CHATEAU BEACH, LLC This First Amendment to the License Agreement (this "Agreement") is made as of this 24 day of ,2015, by and between the CITY OF SUNNY ISLES BEACH, a municipal co oration(the "City") and CHATEAU BEACH, LLC, a Florida limited liability corporation(" ateau Beach"). RECITALS WHEREAS, Chateau Beach is the owner of the property located at 17475 Collins Avenue; and WHEREAS, Chateau Beach obtained zoning approval from the City'to construct a 35 story, 84 unit condominium building(the"Project")on the Property;and WHEREAS, the parties entered into a License Agreement on May 30, 2012, (the "License Agreement") in order to use Samson Oceanfront Park (the "Property") for Project staging purposes,a copy of which is attached hereto as Exhibit"A";and WHEREAS,the License Agreement requires Chateau Beach to restore the Property to its original condition prior to being used for Project staging purposes;and WHEREAS, the City is planning more extensive improvement beyond its original condition of Samson Park, and the City desires that these improvements be constructed along with the entire park rehabilitation project which will be overseen and funded by the City;and WHEREAS, the parties desire to amend the License Agreement to allow Chateau Beach to pay Three Hundred Thousand Dollars ($300,000.00) to the City in lieu of restoring the Property to its original condition prior to being used for Project staging purposes. NOW, THEREFORE, in consideration of Ten Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals. The foregoing recitals are true and correct and are incorporated herein in their entirety. 2. Amendment to Chateau Beach's obligations to restore the Property. The obligations of Chateau Beach set forth in Sections 5 ("Relocation and installation of playground equipment in Samson Park and Flag Pole") and Section 6 ("Renovation of Samson Park")of the License Agreement are hereby amended to reflect that Chateau Beach is no longer required to complete the obligations set forth therein. As specific consideration for not being required to complete the restoration of Samson Oceanfront Park and the installation of a decorative paver sidewalk in front of the Samson Oceanfront Park Property, Chateau Beach agrees to pay the City Revised—FINAL 1/2/15 S I the sum of Three Hundred Thousand Dollars ($300,000.00) which shall be payable no later than March 15,2015. 3. Environmental Testing. Chateau Beach agrees to pay for all expenses associated with a Phase I Environmental test conducted by a firm hired by the City to conduct certain environmental testing of the "staging area" depicted in Exhibit "A" to the original License Agreement between the parties dated May 30, 2012. If the Environmental test reveals contamination caused, directly or indirectly, by Chateau Beach, its agents, employees, contractors or subcontractors, and requires remediation, Chateau Beach agrees to provide the City with a Five Hundred Thousand Dollars ($500,000.00) bond to ensure the Property is free and clear of any negative environmental conditions caused by Chateau Beach. The bond shall be returned to Chateau Beach within one year of transferring the staging area to the City if environmental problems are not detected by the City. In the event any negative environmental conditions, caused,directly or indirectly,by Chateau Beach,its agents,employees,contractors or subcontractors, are discovered following the termination of the License Agreement, as amended herein,then Chateau Beach shall be required indemnify,defend and hold harmless the City from any associated negative environmental clean-up fees and expenses. At the request of the City, Chateau Beach shall ensure that the construction fencing and landscaping currently used to designate the staging area remains upright and in place until removal by the City. The City agrees to accept the responsibility for removing the construction fence upon the termination or expiration of the License Agreement. 4. Term. Section 3 of the License Agreement is revised to reflect that the Term of the License Agreement expires on March 31, 2015 or upon the delivery to Chateau Beach subsequent to March 31, 2015 a letter from the City Manager or designee notifying Chateau Beach that it must vacate the staging area within fifteen(15)days of receipt of the letter. 5. Zoning Resolution. The City agrees to modify Zoning Resolution No. 12-Z-126 to delete the requirement that Chateau Beach install a decorative paver sidewalk in front on Samson Oceanfront Park. All other provisions of the original Zoning Resolution shall remain in full force and effect. 6. Default and Penalties. Section 17 of License Agreement is partially amended to reflect that the City may impose a Fifty Thousand Dollars ($50,000.00) per day penalty if Chateau Beach fails to vacate the staging area at the end of the Term as set forth in Section 4 above. Notwithstanding the foregoing, the City may extend the Term if the Environmental testing described in Section 3 above is not completed. The penalty discussed herein shall apply after the expiration of any extension period. 7. Other provisions remain in effect. Except as specifically modified herein, all terms and conditions of the original License Agreement between the parties dated May 30, 2012, attached hereto as Exhibit"A",shall remain in full force and effect. 8. Conflicting provisions. Any term, statement, requirement, or provision 4 contained in this First Amendment shall prevail and be given superior effect and priority over any conflicting or inconsistent term,statement,requirement or provision contained in the original License Agreement between the parties,attached hereto as Exhibit"A". (��� Revised—FINAL 1/2/15 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the License Agreement in duplicate on the day and year first written above. WITNESS: CHA "+ A B,ACH, C l I / i/ / BY: 4ALlikeli‘ igna�„ - Manue I i• s p , ;i� .ging �i mber ICZAtlato Print Narbe ATTEST: CITY OF SUNNY ISLES BEACH BY: BY: Jane A.Hines,MMC,City Clerk Christopher J.Russo,City Manager APPROVED AS TO FORM AND LEGAL S NCY Tir dot„ BY: / � IS H r.tinr".rs o VCi Attorney Revised—FINAL 1/2/15 g �,� r NY tS<, City of Sunny Isles Beach City Commission s y y George Bud Scholl,Mayor vte 18070 Collins Avenue, Suite 250 Isaac Aelion,vice Mayor Jeanette Gatto, Commissioner _ = Sunny Isles Beach,Florida 33160 Jennifer Levin,Commissioner * �� (305)947-0606 City Hall Dana Goldman,Commissioner ** " ** (305)949-3113 Fax -s-9$''9 w \'c - (305)947-2150 Building Department Christopher J.Russo City Manager * r ° s Hans Ottinot,City Attorney c'ry P'4o (305)947-5107 Fax Jane A.Hines,MMC,City Clerk OF SUN MEMORANDUM TO: Honorable Mayor and City Commission FROM: Christopher J. Russo, City Manager DATE: January 15, 2015 RE: Resolution approving the First Amendment to the License Agreement with Chateau Beach, LLC RECOMMENDATION It is recommended that the City Commission approve the First Amendment to the License Agreement with Chateau Beach, LLC. REASONS To facilitate the construction of Chateau Beach condominium building (the "Project"), the City and Chateau Beach entered into a License Agreement on May 30, 2012, (the "License Agreement") to allow Chateau Beach to use Samson Oceanfront Park (the "Property") for Project staging purposes. The License Agreement requires Chateau Beach to restore the Property to its original condition prior to being used for Project staging purposes. Additionally, the License Agreement required Chateau Beach to install a new playground and make a contribution of Four Hundred Thousand Dollars ($400,000.00) to the City, which they have made. The City is planning more extensive improvements beyond its original condition of Samson Park, and the City desires that these improvements be constructed comprehensively, along with the entire park rehabilitation project,which will be overseen and funded by the City. The parties desire to amend the License Agreement to allow Chateau Beach to pay an additional Three Hundred Thousand Dollars ($300,000.00) to the City in lieu of restoring the Property to its original condition prior to being used for Project staging purposes and installation of decorative pavers in front of the park. The First Amendment further requires that Chateau Beach pay for all expenses associated with a Phase I Environmental test conducted by a firm hired by the City to conduct certain environmental testing of the "staging area". If the environmental test reveals contamination and requires remediation, Chateau Beach agrees to provide the City with a Five Hundred Thousand Dollar ($500,000.00) bond to ensure the Property is clear of any negative environmental conditions caused by Chateau Beach. At the request of the City, Chateau Beach shall ensure that the construction fencing and landscaping currently used to designate the staging area remains upright and in place until removal by the City. Finally, the First Amendment modifies the term of the License Agreement to state it shall expire on March 31, 2015, or upon delivery to Chateau Beach (subsequent to March 31, 2015) of a letter from the City Manager notifying Chateau Beach it must vacate the staging area within fifteen (15) days of receipt of the letter. 2