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HomeMy WebLinkAboutR-2023-046 FAU Third Addendum to Lease - City ParkingRESOLUTION NO. 2023-QL4 L9 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, REQUESTING THE CITY COMMISSION APPROVE THE THIRD ADDENDUM TO THE 1996 LEASE AND LICENSING AGREEMENT DATED MAY 31, 1996, IN ORDER FOR THE CITY TO USE THE PARKING LOT OF FLORIDA ATLANTIC UNIVERSITY (FAU) ON THE WEEKENDS FOR CITY EMPLOYEES, AND THE EMPLOYEES OF LUCKY FISH AND QUARTERDECK; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Dania Beach owns a majority of the area known as Ocean Park, with FDOT owning the balance; and WHEREAS, the City and Florida Atlantic University (FAU) entered into a document entitled "1996 Lease and Licensing Agreement" on May 31, 1996 ("Lease"), in which the City of Dania Beach leased land to FAU for a nominal amount of money ($1.00 a year) within Ocean Park so that FAU may provide educational and other related services ("Services") on the property, and parking, associated with said Services; and WHEREAS, the parties also entered into a "First Addendum to the Lease, in which the parties contemplated a possible additional 49-year term; and WHEREAS, a Second Addendum to the Lease was executed on September 6, 2008, and relates to certain modifications to the original Lease, including the area known as the Dania Beach Marina Property; and WHEREAS, on December 10'h, 1998, the State of Florida Department of Transportation leased state land to FAU through September 14, 2097, in which this land is also located within the City's Ocean Park; and WHEREAS, most weekends the City's Ocean Park closes due to a lack of parking for City residents and visitors; and WHEREAS, the FAU parking lot (the proposed licensed area identified in Exhibit "A") is generally more vacant on the weekends as heavier use for the Services generally occurs Monday through Friday; and WHEREAS, allowing the City to license the area for overflow parking would alleviate some of the parking congestion at the City's Ocean Park; and WHEREAS, the parties desire to enter into this Third Addendum so that the parking lot leased to FAU (leased partly by the City and partly by FDOT) located at FAU's Institute for Ocean and Systems Engineering (SeaTech) with an address of 101 North Beach Road, Dania Beach Florida, 33004 ("Parking lot") and more particularly described in Exhibit "A", attached and made a part of this Resolution, is to be used by the City as overflow parking for City employees, and employees of the Quarterdeck and Lucky Fish restaurants, under certain conditions. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the above "Whereas" clauses are ratified and confirmed, and they are made a part of and incorporated into this Resolution by this reference. Section 2. That the City Commission authorizes the City Manager to execute the Third Addendum to the 1996 Lease and Licensing Agreement dated May 31,1996, between the City and FAU, in accordance with the agreement contained in `Exhibit "A", which is attached to and incorporated into this Resolution by this reference. Section 3. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 4. That this Resolution shall become effective upon its passage and adoption. PASSED 0 APPROVED AS TO FORM AND CORRECTNESS: 2 RESOLUTION #2023-()Li(.0 EXHIBIT A THIRD ADDENDUM TO LEASE AGREEMENT FLORIDA ATLANTIC UNIVERSITY AND THE CITY OF DANIA BEACH This is a Third Addendum to the Lease Agreement by and between the City of Dania Beach, a Florida municipality ("City" or `Licensee"), and the Florida Atlantic University Board of Trustees ("FAU"), , a public body corporate of the state of Florida having a principal address of 777 Glades Road, Boca Raton, F133431 and it is entered into on 2023. RECITALS: WHEREAS, the City of Dania Beach owns a majority of the area known as Ocean Park, with FDOT owning the balance; and WHEREAS, the City and FAU entered into a document entitled "1996 Lease and Licensing Agreement" on May 31, 1996 ("Lease"), in which the City of Dania Beach leased land to FAU for a nominal amount of money ($1.00, a year) within Ocean Park so that FAU may provide educational and other related services ("Services") on the property, and parking, associated with said Services; and WHEREAS, the parties also entered into a "First Addendum to the Lease, in which the parties contemplated a possible additional 49 year term; and WHEREAS, a Second Addendum to the Lease was executed on September 6, 2008, and relates to certain modifications to the original Lease, including the area known as the Dania Beach Marina Property; and WHEREAS, on December 101, 1998, the State of Florida Department of Transportation leased state land to FAU through September 14, 2097, this land is also located within the City's Ocean Park; and WHEREAS, most weekends the City's Ocean Park closes due to a lack of parking for City residents and visitors; and WHEREAS, the FAU parking lot (the proposed licensed area identified in Exhibit A) is generally more vacant on the weekends as heavier use for the Services generally occurs Monday - Friday; and WHEREAS, allowing the City to license the area for overflow parking would alleviate some of the parking congestion at the City's Ocean Park; and WHEREAS, the parties desire to enter into this Third Addendum so that the parking lot leased to FAU (leased partly by the City and partly by FDOT) located at FAU's Institute for Ocean and Systems Engineering (SeaTech) with an address of 101 North Beach Road, Dania Beach Florida 33004 ("Parking lot") and more particularly described in Exhibit A attached hereto and made a part hereof, is to be used by the City as overflow parking for City employees, and employees of the Quarterdeck and Lucky Fish restaurants, under certain conditions; NOW, THEREFORE, in consideration of the mutual promises contained herein, FAU and City/Licensee hereby agree as follows: Recitals. The foregoing Recitals are true and correct and are incorporated herein. ARTICLE 1 LICENSE Section 1.01. FAU, as the leaseholder of the parking lot, provides the City a license, and the City hereby accepts from FAU, a license for the non- exclusive use of the area described in Exhibit A, as the parking lot to be used for overflow parking by Ocean Front Park users under the following conditions: (1) City shall utilize the licensed area identified in Exhibit A. (2) City use for parking purposes shall be limited to Saturdays and Sundays from 11 am — 1 1pm. (3) The licensed area is to be used only by Quarterdeck and Lucky Fish Restaurant Employees along with City personnel working at Ocean Park. (4) City shall provide Security Guard Services within Ocean Park and the licensed area to protect vehicles and facilities on Saturday and Sunday from I lam— I Ipro. (5) City shall provide cleaning crew services to clean the licensed area prior to Mondays at 8am. (6) Upon occupancy, the City shall inspect and clean the stormwater drain in the licensed area. (7) City shall include the licensed area stormwater drain as part of the City's drainage inventory for annual cleaning and maintenance. (8) City expects 20-30 vehicles to park in the licensed area and potentially increase with time, but shall remain within the area depicted on Exhibit A. (9) City shall purchase and install applicable signage in surface parking lot area or outside FAU gate area relating to no trespassing and authorized users. (10)The City shall install barricades to ensure that the only area accessed on the FAU parcel shall be the licensed area. The barricades are identified with the "red boxes" in the attached Exhibit A. The barricades would be set up by the City each weekend and removed by the City prior to 8am the following Monday. The barricades are intended to prevent anyone from parking or driving past it. The City shall work with FAU on the specific placement of the barriers to maximize security for the rest of the FAU property. (11)The City shall also install "No Trespassing" signs on the barricades so it's very clear that no one can go past the barricades. N Section 1.02 Ingress and Egress. Access to the Licensed Premises is controlled by a FAU security gate. This License includes the right of ingress and egress through the parking lot and the security gate to the Parking Spaces by LICENSEE, and the persons identified in section 1.01; provided, however, that FAU shall retain full control of access through the gate. ARTICLE 2 TERM Section 2.01. Term of License. The term of this License (the "Initial Term") shall commence on October 1, 2023 ("Commencement Date"), and end one (1) year thereafter (the "Expiration Date"), unless sooner terminated, or unless the Initial Term is extended as provided in Section 2.03. The Initial Term and renewals/extensions thereof are referred to as "Term." Section 2.02. Suspension. FAU reserves the right to suspend the License granted herein, at its sole discretion and for any reason, upon written notice to Licensee. Section 2.03. Renewal Provision, The License may be extended for up to two (2) additional one (1) year periods upon terms and conditions mutually agreeable to the parties, and with the written approval of the City Manager and FAU executed no less than sixty (60) days prior to the expiration date. ARTICLE 3 LICENSE FEE Section 3.01. License Fee. The City shall pay FAU a fee of $1,800.00 per month, for the License granted herein. This fee shall be used for general maintenance of the access gate, FAU security for the site, and general wear and tear on the property. ARTICLE 4 OPERATION OF LICENSEE'S BUSINESS Section 4.01. Non -Disturbance. Licensee agrees that its parking license herein shall not unreasonably interfere with, block access to, or materially disturb FAU's operations at the site. Licensee agrees to make reasonable modifications to the license rights granted herein upon the reasonable written request of FAU, as applicable. Section 4.02 Hazardous Substances. Licensee agrees that no activity will be conducted on, in, under or about the Parking lot and the Spaces by or through Licensee and any of its agents, contractors, subcontractors, employees, visitors, licensees, or invitees that will use, generate, release, store, dispose of, or produce any pollutants, contaminants, tonic or hazardous substances or wastes, oil or petroleum products, flammables, or any other substances, the nature or quantity of which are, due to their existence, use, release, manufacture, or effect, subject to federal, state, or local environmental, health, or safety laws or regulations, now or subsequently enacted or promulgated by any governmental authority or as a result of any court ruling. 3 ARTICLE 5 MAINTENANCE OF SPACES Section 5.01. Maintenance by Licensee. Licensee shall keep the Parking Spaces in a clean condition. Licensee shall have no duty, obligation, or liability whatsoever for construction, maintenance, replacement, or repair of the Parking lot and the Spaces. Section 5.02. As -Is Condition. The Parking Spaces and the parking lot are accepted by the Licensee in an "as -is" condition, without warranty of condition or merchantability, expressed or implied. Section 5.03. Services, Utilities and Security. FAU is not obligated to furnish any services, utilities, or security for the parking lot and the Spaces other than (i) the existing lighting, and sprinkler systems located in the parking lot on the date of this Agreement, as same may change from time to time; (ii) the cleaning services that are provided for the Parking lot from time to time; and (iii) the security services (if any) provided from time to time. FAU will not be liable to Licensee or its agents, contractors, subcontractors, employees, visitors, licensees, or invitees and for vehicles parked in parking spaces, for any claims arising out of (i) any impediment to use any of any of the parking spaces, or (ii) any loss, disruption, or alleged inadequacy or deficiency in any utility, system, or service provided in the Parking lot; and (iii) any damage, injury or theft pertaining to any vehicle, its contents or any individual using the Parking lot and the Spaces. The Licensee shall be responsible for the routine cleaning and sweeping of the license area to ensure that the area remains clear and free of dirt, debris and litter. Furthermore, the Licensee will be responsible to properly utilize, operate and maintain any security systems installed by the Licensee or FAU for the license area. The City shall provide a cleaning crew to provide cleaning services to clean surface parking lot area utilized by the City over the weekend, prior to the following Monday by 8:00 a.m. to ensure that the lot is presentable and in a clean condition prior to FAU use on Monday. ARTICLE 6 INSURANCE Section 6.01 Public Liability and Property Damage. Licensee, during the entire Term, shall keep in full force and effect the following: Commercial General Liability Insurance naming FAU, its trustees, officers, employees, agents, contractors and volunteers (the "FAU Parties") as an additional insured, written with a carrier licensed to do business in Florida with an AM Best rating of A- or better. Coverage must include, at a minimum: (i) Spaces Operations, (ii) Products and Completed Operations, (iii) Blanket Contractual Liability, (iv) Personal Injury Liability, and (v) Expanded Definition of Property Damage. The minimum limits acceptable are $1,000,000.00 Per Occurrence, $2,000,000.00 Per Location Aggregate. The use of an excess/umbrella liability policy to achieve the limits required by this paragraph will be acceptable as long as the terms and conditions of the excess/umbrella policy are no less restrictive than the underlying Commercial General Liability policy. Section 6.02. Workers' Compensation. Workers' Compensation Insurance shall be maintained by Licensee during the term of the License Agreement, or any renewal period of it, and it is to apply to all "statutory employees" of the Licensee (as that phrase is defined by Chapter 440, Florida Statutes), in compliance with the Workers' Compensation Law of the State of Florida and all applicable federal laws, for the benefit of the Licensee and its employees. Employer's Liability Part B shall be in an amount of no less than One Million Dollars ($1,000,000.00) per occurrence. ARTICLE 7 INDEMNITY AGAINST CLAIMS Section 7.01. Licensee's Obligation to Defend. Licensee shall defend, indemnify and save harmless the FAU Parties from and against all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including, without limitation, attorney fees (including those resulting from the enforcement of the foregoing indemnification), arising from, or which may be imposed upon, incurred by or asserted against FAU, by reason of: (a) Any act, omission or negligence of Licensee or any Licensee Party (which includes but is not limited to any of Licensee's agents, contractors, subcontractors, employees, visitors, licensees, or invitees); (b) Any accident, injury or damage whatsoever caused to any person or to the property of any person occurring in, on or about the Parking Spaces or occurring outside the Parking Spaces but within the Parking lot which is the result of the act, omission or negligence of Licensee or any Licensee Party; (c) Any failure on the part of Licensee or any Licensee Party to observe or perform any of the covenants, agreements, terms, provisions, conditions or limitations contained in this Agreement to be observed or performed by Licensee, including compliance with any governmental requirements applicable to the Parking lot and the parking Spaces. ARTICLE 8 USE Section 8.01. The Parking lot and Spaces shall be used solely for the parking of passenger vehicles in accordance with existing codes, laws, ordinances, rules, and regulations of all governmental authorities having jurisdiction over the Parking lot, including City. The parking or storage of commercial vehicles or equipment or materials, and repair and maintenance of vehicles of any kind is prohibited. The Parking Spaces shall not be used for any illegal purposes, nor in any manner which does or may create any nuisance or trespass, nor in any manner which may vitiate the insurance relating to the Parking lot and Parking Spaces. Access to and use of the Parking Spaces is strictly limited to employees of Licensee and Quarter Deck and Lucky Fish Restaurants and shall not be used nor accessed by any other person. 5 ARTICLE 9 ASSIGNMENT AND AMENDMENTS Section 9.01 Assignment. Licensee may not transfer, assign, or sublease, in whole or in part, this License, without the written consent of FAU, which may be withheld in its sole and absolute discretion. Section 9.02 Amendments. No amendment to this License will be binding on any party unless in writing and signed by all parties. ARTICLE 10 DEFAULT AND TERMINATION BY FAU Section 10.01. Default. Each of the following events shall be a default by Licensee and a breach of this License and constitute an "Event of Default": (a) any failure to perform any other of the terms, conditions, or covenants of this License to be observed or performed by Licensee for more than thirty (30) calendar days after written notice of such default after notice shall have been received by Licensee (unless curative action cannot reasonably be accomplished within such thirty (30) day period, in which event the period to cure such default shall be automatically extended as long as Licensee promptly commences such cure and diligently uses Licensee's best efforts to complete curative action). Section 10.02. Remedies. If any default by Licensee shall continue uncured upon expiration of the applicable curing period, FAU may exercise any one or all of the remedies provided for in this agreement, in addition to all other rights and remedies provided by law or equity, from time to time, to which FAU may resort cumulatively or in the alternative. Section 10.03 Termination. FAU may, at FAU's election, but not with less than 30 days' prior written notice to Licensee, terminate this License. All of Licensee's rights in the Parking lot and Spaces shall terminate upon termination of this License. Promptly after any such termination, Licensee shall surrender and vacate the Parking lot and Spaces and FAU may re-enter and take possession of the Parking lot and Spaces. Termination under this paragraph shall not relieve Licensee from any claim for damages previously accrued, or then accruing, against Licensee. ARTICLE 11 LICENSEE'S RIGHT OF TERMINATION Section 11.01. Except otherwise provided in Section 3.02, Licensee may, at Licensee's election, but not with less than 30 days' prior written notice to Licensee, terminate this License. All of Licensee's rights in the Parking lot and Parking Spaces shall terminate upon termination of this License. Promptly after any such termination, Licensee shall surrender and vacate the Parking lot and Parking Spaces and FAU may re-enter and take possession of the Parking lot and Parking Spaces. C ARTICLE 12 RELEASE & LIMITATION OF LIABILITY Section 12.01. Release and Limitation of Liability. FAU shall not have any liability for the condition of the Licensed Area or the unavailability of access to the Licensed Area. The Licensee, its officers, employees, volunteers, agents, invitees and contractors expressly waive all rights, claims and demands, and forever releases, discharges and holds harmless the FAU Parties from any and all demands, claims, actions and causes of action arising from any cause whatsoever and arising directly or indirectly out of this License Agreement and the use and access to the Parking lot and Parking Spaces, whether caused by the Licensee's action or negligence or the action or negligence of the FAU Parties, the Licensee's employees, agents, contractors or invitees or any third parties in connection with this Agreement. The University reserves the right, in its sole discretion, to require users of the Parking Lot to execute a separate written waiver and release in a form to be provided by University. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE TO FOLLOW] 7 IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day and year first written above. ATTEST: ELORA RIERA, MMC CITY CLERK APPROVED FOR FORM AND CORRECTNESS: EVE A. BOUTSIS CITY ATTORNEY y�i/171 [�`►I.�� CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation ARCHIBALD J. RYAN IV MAYOR ANA M. GARCIA, ICMA-CM CITY MANAGER WITNESSES: Signature PRINT Name Signature PRINT Name STATE OF FLORIDA COUNTY OF BROWARD FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES: a public body corporate of the state of Florida Signature PRINT Name Title Date The foregoing instrument was acknowledged before me this day of .2023 by , of Florida Atlantic University, on behalf of the company Board of Regents, a public corporation of the state of Florida, , who: check one: is personally known to me; or has produced as identification. My Commission Empires: 0 NOTARY PUBLIC State of Florida EXHIBIT A PARING LOT Red boxes — barricades Blue line — the circumference to the licensed area. 10