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HomeMy Public PortalAbout2004-28 Approving Agreement with the Archdiocese of Miami to use the Athletic Field at St. Agnes Catholic ChurchRESOLUTION NO. 2004-28 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING THE AGREEMENT BETWEEN THE MOST REVEREND JOHN C. FAVALORA, ARCHBISHOP OF THE ARCHDIOCESE OF MIAMI, HIS SUCCESSORS IN OFFICE, A CORPORATION SOLE, AND THE VILLAGE OF KEY BISCAYNE; PROVIDING FOR LICENSES TO BE GRANTED IN FAVOR OF THE VILLAGE FOR THE USE OF THE ATHLETIC FIELD LOCATED AT THE ST. AGNES CATHOLIC CHURCH; AUTHORIZING THE VILLAGE MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THE VILLAGE; AUTHORIZING THE VILLAGE MANAGER TO TAKE ALL ACTION NECESSARY TO IMPLEMENT THE AGREEMENT; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village of Key Biscayne (the "Village") desires to obtain licenses in favor of the Village for the use of the Athletic Field located at the St. Agnes Catholic Church (the "Athletic Field") at certain times; WHEREAS, the Village desires to make certain improvements to the Athletic Field; and WHEREAS, the Village Council finds that the approval of the Agreement is in the best interest of the Village. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS: Section 1. That the Agreement in substantially the form attached hereto between the Village and The Most Reverend John C. Favalora, Archbishop of the Archdiocese of Miami, his successors in office, a corporation sole, is hereby approved and the Village Manager and Village Clerk are authorized to execute such Agreement, in their respective capacities, on behalf of the Village. Section 2. That the Village Manager is authorized to take all action necessary to implement the Agreement, including the expenditure of appropriated funds in accordance with the requirements of the Agreement. Section 3. That this resolution shall become effective upon its adoption. PASSED AND ADOPTED this 22nd day of June, 2004. 71/0(tb-ditiL, MAYOR ROBERT OLDAKOWSKI CONCHITA H. ALVAREZ, CMC, VILLAGE CLE APPROVED AS 0 • RM AND LEGAL SUFFICIE VILLAGE A 0 ' r F:\100\103001\Ballfield\Resolution Approving Ballfield Agreement v2.doc VAag C u I Robert Oldakowskt Mayo Jorge E Mend= V ye Mayor Martha Fdez Leon Broucek Carol Diaz -Castro Mornmcr Fried James L Peters Robert L Vernon VILLAGE OF KEY BISCAYNE DT June 16 2004 TO Ho it Members age Manager Agreement between the Village of Key Biscayne and Archdiocese of Miami RECOMMENDATION It is recommended that the Village Council approve this agreement between the Village of Key Biscayne and the Archdiocese of 11Tiami BACKGROUND The Village of Key Biscayne has met with representatives from St Agnes Church to discuss improvements to their athletic field pursuant to an agreement The Village has offered to improve the field while hghtuig the field and court. Resolution 2004 25 approved by the Village Council June on 1 2004 authorized the Village Manager to negotiate contracts for the design and construction of the proposed field improvements Post, Buckley Schuh & Jengan, Inc has begun the design and permit process for the construction of the field Representatives from Post, Buckley Schuh & Jengan, Inc have met with the Pro Turf Inc and the Village to msure that the project may be completed as soon as possible If the resolution before you today is approved it would allow Pro Turf Inc to begin construction of the field improvements as soon as the design and permit process is completed If the Village Council decides not to approve the agreement it would only be accountable for the design and permit expenses to date The loss of the 200 Crandon Field has compounded an already evident field shortage The field improvement and hghtuag will serve to mitigate the impact of the loss of active recreational space The funding for this agreement is budgeted in the Parks & Recreation Department budget 88 West McIntyre Street Key Biscayne Honda 33149 (305) 365 5506 Fax (305) 365-8914 MISSION STATEMENT TO PROVIDE A SAFE QUALITY COMMUNITY ENVIRONMENT FOR ALL ISLANDERS THROUGH RESPONSIBLE GOVERNMENT AGREEMENT THIS AGREEMENT (hereinafter the "Agreement") is made as of this 23rd day of June, 2004 by and between the THE MOST REVEREND JOHN C. FAVALORA, Archbishop of the Archdiocese of Miami, his successors in office, a corporation sole (hereinafter the "Owner") and the VILLAGE OF KEY BISCAYNE, a Florida municipal corporation (hereinafter the "Village"). RECITALS A. The Owner is the owner of fee simple title to certain real property located in the Village known as St. Agnes Catholic Church (the "Property") which includes, among other improvements, an athletic field legally described as Exhibit "A" attached to this Agreement (the "Athletic Field"); B. The Village desires to use the Athletic Field for youth athletic programs and activities; C. The Owner has agreed to allow the Village to use the Athletic Field during certain hours upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated into this Agreement by reference. 2. License. Owner does hereby grant to the Village, its invitees, agents, employees, contractors, guests, officials and representatives, the following licenses: (i) an exclusive license over, on, across, under, through and upon the Athletic Field during those after -school hours set forth on the schedule attached hereto as Exhibit "B" on weekdays and weekend days during the Initial Term (hereinafter defined), as the Initial Term may be renewed in accordance with the provisions of subsection 3.2 below (the "Term"), as well as such other times as mutually agreed to by the parties, for use by the Village for the purposes set forth in Section 7 below and (ii) a non-exclusive license over, on, across, under, through and upon the Athletic Field during the Term for construction, inspection and maintenance of the Field Improvements (hereinafter defined), of the Athletic Field and performance of the Village's other obligations contained in this Agreement. 3. Term. 3.1 The initial term of this Agreement shall be for five (5) years commencing as of the date hereof and expiring on June 22, 2009 (the "Initial Term"). N, 3.2 Owner hereby grants to Village the option to renew this Agreement and the licenses granted to the Village herein commencing as of the date immediately following the expiration date of the Initial Term for five (5) successive terms of one (1) year each, provided that (i) the Village shall give the Owner written notice of its election to exercise its renewal option as contained herein not later than ten (10) days prior to the expiration date of the then current term of this Agreement and (ii) the Village is not then in default of this Agreement after the expiration of any applicable notice and cure period. The terms, covenants and conditions of this Agreement, as the same may be modified from time to time, shall continue to be in effect during each such renewal term. 4. Fees. The Village shall pay the Owner an annual license fee of Thirty Six Thousand and 00/100 Dollars ($36,000.00) for the licenses granted to Owner herein, which fee shall be paid in equally monthly installments of Three Thousand and 00/100 Dollars ($3,000.00) on the first day of each month during the Tenn. For any partial month during the Term, the monthly installment payment of Three Thousand Dollars and 00/100 Dollars ($3,000.00) shall be prorated on a per diem basis based on the number of days in such month. Owner hereby directs the Village to make all payments required hereunder directly to St. Agnes Catholic Church at 100 Harbor Drive, Key Biscayne, Florida 33149. 5. Improvements by the Village. 5.1 In consideration of the Owner's agreements set forth herein, the Village agrees to cause the Athletic Field to be renovated, including grading, drainage, irrigation and lighting improvements and the installation of a Bermuda grass surface thereon (collectively, the "Field Improvements"). A schedule of the Field Improvements is attached as Exhibit "C" to this Agreement. Subject to "force majeure", the Village agrees to use its diligent efforts to complete the Field Improvements by September 1, 2004. The term "force majeure" as used in this Agreement shall mean any emergency, cause or event which results in the prevention or delay of performance by the Village of its obligations under this Agreement and which is beyond the reasonable control of the Village, including, but not limited to, strikes, lockouts or other labor troubles, fire or other casualty, governmental preemption in connection with a national emergency, any rule, order or regulation of any governmental agency or any department or subdivision thereof (provided that the Village's actions cannot delay the performance of the Village's obligations under this Agreement), or inability to secure materials or labor because of any such emergency, rule, order, regulation, war, civil disturbance or other emergency, cause or event beyond the reasonable control of the Village. 5.2 The Village will cause separate water and electricity meters to be installed for the Athletic Field and will pay for all water and electricity charges incurred by the Village in connection with its use of the Athletic Field. Owner agrees to grant FPL and the Miami -Dade County Water and Sewer Authority reasonable access to the Athletic Field and any easements over, on, across, through and upon the Athletic Field which are reasonably required for the installation and maintenance of such separate water and electricity meters. 2 6. Ownership of Athletic Field. Owner covenants that it is the owner of the Athletic Field. Except as may be otherwise provided in this Agreement, during the Term, Owner shall maintain the Athletic Field in good repair and suitable condition for the Village's purposes as described herein. 7. Use of the Premises. 7.1 During the Term of this Agreement, the Village shall have use of the Athletic Field for the following purpose(s): for organized youth oriented activities and recreational programs (such as, by way of example and not limitation, softball and basketball games). During the times designated for use of the Athletic Field by the Village hereunder, the Village shall have sole and uninterrupted use and control of the Athletic Field. 7.2 The Village agrees to restrict its use of the Athletic Field for the purposes set forth in this Agreement, and not to use, or permit the use, of the Athletic Field for any other purpose without first obtaining the consent of the Owner. Owner and the Village acknowledge and agree that the Village's use of the Athletic Field shall include use of the Athletic Field by other organizations, entities, and persons who have separate written agreements with the Village and which have received the prior written consent of the Owner, such consent not to be unreasonably withheld or delayed. Without limiting the foregoing, the Owner acknowledges and agrees that the Key Biscayne Athletic Club ("KBAC") is permitted to use the Athletic Field pursuant to a separate written agreement between the Village and KBAC. 7.3 The Village agrees not to use the Athletic Field for any use that is morally offensive to the reasonable sensibilities of the Roman Catholic Church. 8. Covenants of the Village. During the Term of this Agreement, the Village covenants and agrees as follows: (i) On the morning following each use of the Athletic Field by the Village, the Village will conduct a maintenance inspection of the Athletic Field and clean-up the Athletic Field so that it is ready for use by the Church school. (ii) The Village will contract with a field maintenance company to maintain the Bermuda grass field at the Village's expense. (iii) On each day that the Village uses the Athletic Field, the Village will turn off all lighting at the Athletic Field by 9:15 p.m., without exception. (iv) The Village will post a "no trespassing" sign on the Athletic Field. (v) The Village will abide by and conform to reasonable rules and regulations from time to time adopted or prescribed by the Owner for the governance and management of Athletic Field so long as said rules and 3 regulations do not conflict with the rights granted to the Village in this Agreement. (vi) The Village shall pay Owner on demand any sum which may be due to Owner for additional services, accommodations, or materials furnished or loaned by Owner at the actual cost thereof. (vii) The Village shall not cause or allow alcoholic beverages of any kind to be sold, given away, or used upon the Athletic Field except after obtaining the express written consent of Owner. In such event, the Village shall possess the necessary liquor license and permit. (viii) In connection with the exercise of the Village's rights hereunder, during its period of usage, the Village shall not allow or permit the following on the Athletic Field: dogs, any type of skating (i.e., rollerskating, rollerblading, and skateboarding) or vehicles, other than vehicles of the Village. (ix) Other than the Field Improvements, the Village will only make those alterations, additions, or improvements, in, to, or about the Athletic Field which have been approved in advance and in writing by Owner. Owner hereby gives the Village the right, but not the obligation, to install and maintain temporary backstops and base cut-outs for the baseball field, provided that such do not unreasonably interfere with the after -school athletic activities of the Church. At the end of each season, the Village shall be responsible for returning the Athletic Field to the condition existing prior to such season (including maintenance of the Field Improvements), ordinary wear and tear excepted. (x) The Village shall provide permits to all groups permitted by the Village to use the Athletic Field. The Village shall require that such permits must be available for inspection by the Village police. (xi) The Village Parks and Recreation Department will supervise and manage the Village's use of the Athletic Field in accordance with the terms of this Agreement. 9. Damage to Athletic Field. The Village will (a) assume full responsibility for the character, acts, and conduct of persons admitted to Athletic Field by the Village, including damage to any portion of the Athletic Field or any equipment therein; (b) not injure, nor mar, nor in any manner deface the Athletic Field or any equipment contained therein, and (c) if the Athletic Field or any equipment contained therein is damaged by the act, default or negligence of the Village or its invitees, agents, employees, contractors, guests, officials and representatives, the Village shall cause the Athletic Field and/or equipment to be returned to their condition as existed immediately prior to such damage. The Village hereby assumes full responsibility for the character, acts and conduct of all persons admitted to the Athletic Field by the Village or any person acting on behalf of the Village. The obligations of the Village under this paragraph are subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, as amended or superseded. 4 10. Ordinances and Statutes. The Village shall comply with all applicable statutes, ordinances and requirements of all municipal, state and federal authorities now in force, or which may hereinafter be in force, pertaining to the Athletic Field, occasioned by or affecting the use thereof by the Village. 11. Assignment. The Village shall not assign this Agreement. 12. Nuisance. The Village shall not use the Athletic Field for any unlawful purpose or in any way which will constitute a nuisance. 13. Liability/Indemnification of Owner. 13.1 The Village shall save the Owner harmless from and indemnify it against any claim or liability for any use arising in connection with the use of the Athletic Field by the Village, its invitees, agents, employees, contractors, guests, officials and representatives. The Village further agrees to hold Owner harmless for any injury, loss, or damage to any person or property on the Athletic Field occurring during the times that the Village has exclusive use and control thereof or by virtue of any act, error, or omission of the Village, except to the extent the same is caused by or results from the carelessness, negligence, or improper conduct of Owner, its agents or employees. The obligations of the Village under this paragraph are subject to the provisions and monetary limitations of Section 768.28, Florida Statutes, as amended or superseded. 13.2 Except to the extent caused by the negligent or willful acts or omissions of Owner, it is expressly understood and agreed by and between the parties hereto that in no case shall the Owner be liable to the Village or its invitees, agents, employees, contractors, guests, officials and representatives, for any injury, loss and/or damage to any person or property on the Athletic Field during the Village's use thereof, the Village hereby taking all risk in connection with its use of the Athletic Field. 14. Independence of the Village. It is expressly understood and agreed by and between the parties hereto that the Village is not owned, operated, sponsored, affiliated, or otherwise under the direction or control of Owner. Owner has no authority or control over any aspect of the Village's operations, except as provided in this Agreement. The Village is an entity entirely independent of Owner related only by the independent contractual terms of this Agreement. 15. Warranties by the Owner. It is further expressly understood and agreed by and between the parties hereto that, other than as expressly set forth in this Agreement, this Agreement does not contain or embody, and shall not be construed to contain or embody any covenant, warranty or agreement on the part of the Owner, and there are no verbal agreements whatever between the Owner and the Village. 5 16. Insurance. The Village, at its cost, shall provide liability insurance coverage in the amount of One Million Dollars ($1,000,000.00) per occurrence, and Three Million Dollars ($3,000,000.00) in the aggregate. All insurance shall be placed with companies admitted to do business in the State of Florida or which shall have an AM Best rating of at least an "A". The Owner must be a certificate holder on any policy of insurance purchased by the Village in compliance with this Agreement, and it is entitled to receive a copy of any policies of insurance within thirty (30) days of the effective date of the polity. The Village shall obtain the insurer's agreement to give not less than thirty (30) days advance notice to the Owner before cancellation, expiration or alteration of any policy of insurance. The Village agrees to maintain such policies of insurance during the term of this Agreement, and any failure to do so will constitute a breach of the terms of the Agreement. Owner shall be named as an additional insured and said policy will be primary over any other collectible insurance for any liability arising out of claims in connection with this Agreement. 17. Expiration. At the expiration or termination of this Agreement, as herein provided, the Village will within 24 hours, remove any of the Village's property located at the Athletic Field. Additionally, the Village shall surrender Athletic Field in the same condition as when it took possession (except for the Field Improvements), ordinary wear and tear excepted. 18. Notices. Any notice which either party may or is required to give, shall be given in writing and shall be given by mailing the same, certified mail, return receipt requested, postage prepaid, or by hand delivery, or by overnight courier service, to the Village at the address shown below or Owner at the address shown below, or at such other places as may be designated by the parties from time to time. Notices may also be delivered by facsimile provided such notice is also sent by one of the methods in the preceding sentence. If to Village: Village of Key Biscayne 88 West McIntyre Street Key Biscayne, Florida 33149 Attention: Jacqueline Menendez, Village Manager Facsimile No.: (305) 365-8936 and Village of Key Biscayne Attn: Director, Recreation Department 88 West McIntyre Street Key Biscayne, Florida 33149 Facsimile No.: 6 If to Owner: Archdiocese of Miami, Inc. c/o Very Reverend Jose Luis Hernando, V.F. St. Agnes Church 100 Harbor Drive Key Biscayne, Florida 33149 Facsimile No.: (305) 361-8514 With a copy to: Archdiocese of Miami 9401 Biscayne Boulevard Miami Shores, Florida 33138 Department of Temporalities Facsimile No.: (305) 758-5261 And J. Patrick Fitzgerald, Esq. J. Patrick Fitzgerald, P.A. 110 Merrick Way Suite 3B Coral Gables, Florida 33134 Facsimile No.: (305) 443-6613 In addition to being the addressee for notices to the Village, the principal contact for the Village in connection with this Agreement is the Director of the Recreation Department, which is currently Todd Hofferberth. 19. Governing Law and Venue. Agreement shall be governed by the laws of the State of Florida and venue for the enforcement of this Agreement shall be in Miami -Dade County, Florida. 20. Severability and Enforceability. The terms of this Agreement are severable, and in the event that any specific term herein is determined to be unenforceable the remainder of the Agreement shall remain in full force and effect. 21. No Bathroom Facilities. The Village acknowledges and agrees that, in connection with the Village's use of the Athletic Field as provided herein, none of the Church's bathrooms facilities shall be available for use by the Village, its invitees, agents, employees, contractors, guests, officials or representatives. 22. Entire Agreement. This Agreement, including all exhibits attached hereto, contains the final, complete and entire agreement between the parties and may be modified only by in writing signed by both parties. 7 23. Third Party Beneficiaries. Neither Owner nor the Village intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement, including, but not limited to, KBAC. 24. Termination. The Owner shall be entitled to terminate this Agreement for any reason whatsoever upon six (6) months prior written notice to the Village. If the Owner exercises such right of termination during the Initial Term, then the Owner shall reimburse the Village for a portion of the costs incurred by the Village for the Field Improvements calculated as follows: the total costs incurred by the Village for the Field Improvements shall be amortized over the Initial Term and the Owner shall reimburse the Village for the amortized costs remaining from the date of termination until the expiration date of the Initial Term set forth in Section 3.1 hereof. 25. Governing Law. This Agreement shall be construed under the laws of the State of Florida. 26. Modification of Agreement. This Agreement may only be amended by a written agreement signed by the parties hereto. 27. Police Protection. Owner agrees that the Village shall have no obligation to provide security and police protection for the Athletic Field in excess of the normal level of police protection routinely provided throughout the Village. Furthermore, Owner agrees that neither this Agreement nor anything contained herein shall give rise to any greater liability than the Village would ordinarily be subjected to when providing its normal police services as routinely provided throughout the Village. 28. Prior License Agreement. This Agreement supersedes and replaces that certain Non -Exclusive Space Usage Agreement and License entered into as of April 1, 2002 between the Owner and the Village. [REST OF PAGE INTENTIONALLY LEFT BLANK] 8 IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written. WITNESSES: Print Name: ti f L AR I A E, L L I aila.69„ Print Name: ock arm -tmlyq-0 A Y Village Clerk Approved as to legal form and sufficiency: By: eu./v0L---N,( . C4Ar----- Village Attorney OWNER: C-'k�i-J- z4 T/MOST REVEREND JOHN C. FAVALORA, Archbishop of the Archdiocese of Miami, his successors in office, a corporation sole VILLAGE: VILLAGE OF KEY BISCAYNE, a Florida municipal corporation By: Jacqu Menendez, • ge Manager 9 STA1 E OF FLORIDA SS: COUNTY OF MIAMI-DADE The foregoing Agreement was acknowledged before me this a3 day of June, 2004 by THE MOST REVEREND JOHN C. FAVALORA, Archbishop of the Archdiocese of Miami, his successors in office, a corporation sole, who (check on) [,X is personally known to me or [ ] has produced a Florida drivers license as identification. STATE OF FLORIDA ) SS. COUNTY OF MIAMI-DADE (Signature of person taking acknowledgment) Ii (Name of acknowledger typed, printed or stamped) (Title or rank) .'�pstY PU O�ETHHEEL.MARI�NEW 2 t SEAL �en ^ * COMMISSION NUMBER 4 t J � �-�� „ Q DD024543 4. MY MY COMMISSION EXPIRES JUNE: 8,2005, (Serial number, if any) The foregoing Agreement was acknowledged before me this 1 day of .3"- 2004 by Jacqueline Menendez, as Village Manager of the Village of Key Biscayne, a Florida municipal corporation, in the capacity aforestated; such person is personally known to me or has produced a driver's license as identification. My Commission Expires: F:\100\ 103001\Ballfield\Ballfield Agreement v4.doc friti-efAit f Notary Public, State of Florida MAYRA F. GOMEZ MY COMMISSION # DD 002789 EXPIRES: Feb 20, 2005 1-800.3.NOTARY FL Notary Service & Bonding, Inc 10 EXHIBIT "A" Legal Description of Athletic Field West 250 feet of Tract "C", 4t' Addition to Tropical Isles Homes Subdivision, as recorded in Plat Book 53 at Page 39 of the Public Records of Miami -Dade County, Florida. EXHIBIT "B" , Schedule of Hours TIME OF YEAR TIME OF DAY AREA March through May 5 :3 OPM to 9:15 PM 3:30PM to 9:15 PM Field Basketball Court August through October 3:30 PM to 9:15 PM 5:OOPM to 9:15 PM Field Basketball Court January through February 5:00 PM to 9:15 PM 3:30 PM to 9:15 PM Field Basketball Court November through January 3:30 PM to 9:15 PM 5:00 PM to 9:15 PM Field Basketball Court * Schedule subject to change in accordance with the St. Agnes scholastic athletic program EXHIBIT "C" Field Improvements SCOPE OF WORK General Sitework : • Clear and grub field to remove existing sod. Soccer Field: • Roll and compact grade • Import fill material to raise • Grade field to final grade to receive new top soil sand mix. • Bermuda 419 Sod shall be planted on the entire areas of the field. (Sod maintenance and cutting for a 30 -day period is included.) • The field will be fully irrigated. • Water service for irrigation will be a 2" line tapped into the City Mains and fitted with a 2" backflow preventer and water meter. ■ Drainage shall be Catch Basins and French Drains Lighting: Sports Lighting System with six poles for soccer field lighting at recreational lighting levels. Sports Lighting System with two poles for basketball court at recreational lighting levels. General Conditions: ■ Provide supervision. • Provide bond and insurance. • Provide protection and clean-up of site. • Provide plans and permits.