HomeMy Public PortalAbout2001-56 Agreement with Tesaurus, IncRESOLUTION NO. 2001-56
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA; AUTHORIZING
THE VILLAGE MANAGER TO ENTER INTO THE
ATTACHED AGREEMENT WITH TESAURUS, INC. FOR
PURPOSES OF LEASING LAND AT 200 CRANDON
BOULEVARD AND DEVELOPING THE SITE FOR
RECREATIONAL FACILITIES; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the Village Council has determined that additional recreational land is needed
in order to provide for the needs or our citizens; and
WHEREAS, there has been significant public input and numerous Council meetings where
the public has requested that the Council provide additional land for recreational facilities; and
WHEREAS, the development of the land at 200 Crandon Boulevard will provide a
multipurpose field that can accommodate three (3) soccer fields or several T ball fields or open field
playing fields or combinations of recreational activities, and parking.
NOW, THEREFORE BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA AS FOLLOWS:
Section 1. That the Village Manager is authorized to enter into the attached Agreement
with Tesaurus Holdings, Inc.
Section 2. That the Village Manager is instructed to expeditiously implement the
development of the property.
Section 3. That the Agreement, in substantially the form attached, is hereby approved
and the Village Manager, Village Clerk, and the Village Attorney, in their respective capacities are
authorized and directed to execute the Agreement on behalf of the Village and are authorized to take
any and all actions necessary to immediately implement all of the purposes and intent of this
Resolution and attached Agreement.
Section 4. That the Village Manager and Village Attorney are authorized to take any and
all action necessary to implement the Agreement;
Section 5. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 28th day of August , 2001.
,a4b,
CHITA H. ALVAREZ, CMC, VILLAGE C
APPROVED AS TO FORM AND LEGAL SUFFIC
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RICHARD JAY WEISS, VILLAGE ATTORNEY
MAYOR JOE I. RA` CO
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LEASE AGREEMENT
HIS LEASE AGREEMENT (this "Lease") is made and entered into as of the I r day
of ' 2001 by and between TESAVRUS HOLDINGS, INC., a Florida corpo tion,
whose ing address is 240 Crandon Boulevard, Suite 212, Key Biscayne, Florida 33149
("Landlord") and the VILLAGE OF KEY BISCAYNE, a Florida municipal corporation, whose
mailing address is 85 West McIntyre Street, Key Biscayne, Florida 33149 ("Tenant").
RECITALS
1. Landlord is the owner of that certain vacant real property located at the street address
of 200 Crandon Boulevard, Key Biscayne, Florida 33149 (the "Property").
2. Tenant desires to lease from Landlord, and Landlord is willing to lease to Tenant the
Property as more particularly described in Exhibit "A" attached hereto and made a part hereof (the
`Premises"), in furtherance of such purposes of Tenant and upon and subject to all of the terms,
covenants, conditions and provisions set forth below.
NOW, THEREFORE, in consideration of the rents and agreements set forth herein, and
intending to be legally bound hereby, Landlord and Tenant agree as follows:
ARTICLE 1. Demise; Term; Rent.
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from Landlord for the
Term (as hereinafter defined), the Premises.
1.2 This Lease shall be for a initial term of six (6) months commencing on the date of
Substantial Completion of the Improvements (as hereinafter defined) (the "Commencement Date"),
and expiring six (6) months thereafter (the "Termination Date") (the "Initial Term"). Upon the
expiration of the Initial Term, the Lease shall be automatically renewed for successive three (3)
month terms, unless sooner terminated in accordance with the terms of this Lease (the "Renewal
Terms"). The Initial Term and the Renewal Terms shall hereinafter be collectively referred to as the
"Term."
1.3 During any Renewal Term, Landlord and Tenant shall have the right, in their sole
discretion, to electively terminate this Lease upon sixty (60) days prior written Notice (as defined
below) to the other party. Upon the date set forth in such Notice, which shall not be less than sixty
(60) days from the date of the Notice, this Lease shall terminate and the parties shall be relieved of all
rights and obligations hereunder except for any rights and obligations that expressly survive
termination as set forth herein. Neither party shall have the right to electively terminate this Lease
during the Initial Term.
1.4 Landlord acknowledges and agrees that Tenant shall construct a_ parking lot and
playing fields on the Premises for use by Tenant and its agents, employees, invitees, guests and the
general public.
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1.5 The monthly rent for the Term shall be Three Thousand Two Hundred Fifty Seven
and 13/100 Dollars ($3,257.13) (the "Rent"), which amount includes all applicable sales tax, payable
to Landlord commencing on the Commencement Date and thereafter, in advance, on the first day of
each month. Tenant shall receive a credit or offset against the Rent for the Initial Term in an amount
equal to the costs incurred by Tenant for the planning, design, engineering, and construction of the
parking lot on the Premises. The parties acknowledge and agree the amount of the credit or offset
shall not exceed the amount of the Rent for the Initial Term of six (6) months and no credit shall or
offset shall be carried forward with respect to Rent due to the Landlord for the Renewal Terms.
.Notwithstanding anything herein to the contrary, in the event that the gross amount of ad valorem
taxes on the Property increases during the Term (as evidenced by comparison of the current year's
tax bill against the previous year's tax bill), the monthly Rent (which amount includes all applicable
sales tax) shall be adjusted to equal one -twelfth (1/12) of the annual gross ad valorem taxes for the
Property as shown on the tax bill. The increase shall take effect in the next monthly payment due
after receipt of the tax bill by Landlord and presentation to Tenant. Nothing herein shall be
construed as granting a tax exemption or rebate in favor of Landlord, it being understood that the
amount of the real estate taxes is merely being used as a measure to determine the Rent
1.6 Upon the expiration of the Term or any earlier expiration or termination of this
Lease, Tenant shall quit and surrender to Landlord the Premises in the condition required under
this Lease, excepting ordinary wear and tear.
ARTICLE 2. Utilities. Any and all utilities necessary for the use of the Premises by Tenant
including, but not limited to, electric, water and sanitary sewer facilities, shall be separately arranged
for and paid by the Tenant Landlord acknowledges and agrees that connections for utilities may be
required on the Premises and shall cooperate with Tenant in obtaining all utilities including, but not
limited to entering into the necessary agreements and easements with the providers of such utilities.
ARTICLE 3. Use; Certain Representations.
3.1. The Premises shall be used for the parking of motor vehicles and playing fields,
and for such other purposes related to or ancillary to the foregoing uses.
3.2 During the Term of this Lease, Tenant and its employees, agents, guests, invitees
and the public shall have the right to use the parking facilities after 3:00 p.m. (EST) Monday
through Friday, and twenty-four (24) hours a day on all weekends and legal holidays. Landlord
shall have use of the parking facilities from 12:00 a.m. (EST) to 3:00 p.m. (EST) Monday
through Friday. During the period of Landlord's use of the parking facilities as set forth in the
preceding sentence, notwithstanding anything herein to the contrary, Landlord shall have full
legal and administrative responsibility for any personal injury, death and/or property damage
occurring at the parking facilities. Tenant and its employees, agents, guests, invitees and the
public shall have the right to use the playing fields at all time during the Term of this Lease on a
twenty-four (24) hour basis, three hundred sixty five (365) days per year.
ARTICLE 4. Improvements to the Premises.
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4.1 Tenant, at its cost, shall have the right to construct and maintain a parking lot and
playing fields on the Premises (the "Improvements"). Tenant shall have the right to select the
materials for the surface of the parking lot in its sole discretion, which may be asphalt Tenant shall
have the further right to illuminate the playing fields. All equipment, furniture, furnishings and other
personal property provided by Tenant or at Tenant's expense and any other movable property of
Tenant shall be and remain property of Tenant that shall be removed on or before the Termination
Date or earlier termination of this Lease.
4.2 Tenant shall be responsible for the maintenance and/or loss of any of Tenant's
personal property, except for any loss or damage caused by Landlord and its employees, agents, guest
and invitees. During the Term of this Lease, Tenant shall maintain the Premises in good order and
condition.
4.3 The Improvements shall be completed in substantial accordance with architectural
and engineering plans and specifications (the "Plans arid Specifications") prepared by [Willy
Borotoj, at Tenant's sole cost and expense. Both parties shall approve the Plans and Specifications
in the manner set forth herein. Tenant shall cause the Plans and Specifications to be prepared and
submitted to the Landlord for review. Landlord shall have a period of not more than fifteen (15)
days following such submittal in which to review and approve the Plans and Specifications or state
any objections to such in writing. Landlord's approval shall not be unreasonably withheld, and any
objections shall be reasonable in nature and stated in sufficient detail so as to allow necessary
modification by Tenant. Tenant shall have a period of not more than ten (10) days following receipt
of Landlord's objection(s), if any, to make necessary modifications to the Plans and Specifications
and resubmit to Landlord in final form. Once accepted by Landlord in final form, the Plans and
Specifications may only be further modified with Tenant's written approval.
4.4 Should Landlord fail to either approve or submit the Plans and Specifications to
Tenant by the date specified in this Section or make any reasonable modifications to same and
resubmit to Tenant as so specified, then the Plans and Specifications shall be deemed approved by
Landlord
4.5 Tenant shall select the contractor(s) for the construction of the Improvements and
shall obtain all building permits necessary to complete the Improvements, all in accordance with
applicable law.
4.6 Tenant shall substantially complete the Improvements in accordance with the Plans
and Specifications. "Substantial Completion" shall mean that the appropriate governmental
authority has issued a.permanent certificate of occupancy or use, as applicable, or that the parking lot
and the playing fields are sufficiently complete to allow Tenant to occupy the Premises for the uses
and purposes intended.
4.7 Landlord acknowledges and agrees that the Tenant shall cause the Improvements to
be constructed prior to the Commencement Date of the Lease. In order to do so, commencing upon
the date this Agreement is signed by the parties, Landlord hereby grants Tenant and its employees,
contractors (and their subcontractors), agents, consultants, a license to enter upon the Premises for
the purpose of constructing the Improvements and activities necessary and ancillary.thereto. Such
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license shall be subject to the parties obligations with respect to maintenance under 4.1,
indemnification under Section 7, and insurance under Section 13, all of which shall be effective
during the term of the license. The license shall terminate upon the Commencement Date.
4.8 Landlord acknowledges and understands that time is of the essence in all time
deadlines under this Lease, especially in regards to Substantial Completion of the Improvements and
agrees to abide by all requirements
ARTICLE S. Quiet Enjoyment. Upon paying Rent and keeping and performing the ttj,iis,
covenants, conditions and provisions of this Lease, Tenant may lawfully and quietly hold and enjoy
the Premises during the Term without hindrance, ejection, molestation, or interruption.
ARTICLE 6. Defaults; Conditional Limitations; Remedies. If either party is in default
under this Lease for a period of (a) 15 days following receipt of notice from the non -defaulting
party with respect to a default which may be cured solely by the payment of money, or (b) 30
days following receipt of notice from the non -defaulting party with respect to a default which
may not be cured solely by the payment of money, then, in either event, the non -defaulting party
may pursue any remedies available to it against the defaulting party under applicable law and in
equity, including, but not limited to, the right to terminate this Lease. If the non -monetary
default may not reasonably be cured within a 30 -day period, this Lease may not be terminated if
the defaulting party commences action to cure the default within such 30 -day period and
proceeds with due diligence to fully cure the default.
ARTICLE 7. Indemnification.
7.1 Subject to the provisions and monetary limitations of Section 768.28, Florida
Statutes, Tenant does hereby indemnify and hold harmless Landlord from and against any and all
liabilities, damages, claims, costs or expenses whatsoever including reasonable attorneys' fees and
costs at both the trial and appellate levels (collectively "Claims") arising from Tenant's exercise of
its rights under this Lease, except for any Claims arising due to the acts or omissions of Landlord.
Subject to the limitations contained herein, Tenant does hereby indemnify Landlord from all third
party claims asserted against Landlord based upon either the grossly negligent or tortuous acts or
omissions of Tenant, its agents, contractors, guests, invitees, successors and assigns, in exercising or
discharging Tenant's rights pursuant to this Lease.
7.2 Landlord does hereby indemnify and hold harmless Tenant and its elected officials,
employees from and against any and all Claims arising from Landlord's exercise of its rights under
this Lease, excep(for any Claims arising due to the acts or omissions of Tenant. Subject to the
limitations contained herein, Landlord does hereby indemnify Tenant from all third party claims
asserted against Tenant based upon either the grossly negligent or tortuous acts or omissions of
Landlord, its agents, contractors, guests, invitees, successors and assigns, in exercising or discharging
Landlord's rights pursuant to this Lease.
ARTICLE & Assignment and Subletting. Tenant shall not sublet assign or otherwise
transfer this Lease, or any part of Tenant's right, title or interest therein or mortgage, pledge or
otherwise encumber this Lease without Landlord's prior written consent, which consent shall not be
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unreasonably withheld or delayed.
ARTICLE 9. Damage; Restoration. If the Premises, including the Improvements or any
part thereof shall be damaged or destroyed by fire, flood or other casualty ("Damage") as to render
the Premises and/or the Improvements, or any part thereof, untenantable by Tenant for a consecutive
period of more than thirty (30) days, Tenant may terminate this Lease by giving thirty (30) days
Notice to the Landlord. If Tenant does not truniinate this Lease as aforesaid, Tenant shall proceed
with diligence to repair the Damage to the Improvements and Landlord shall proceed with diligence
to repair the Damage to the Premises only to the extent that insurance proceeds are available.
ARTCILE 10. Ingress and Egress. Tenant, its agents, employees, invitees, guests and
the public shall have the non-exclusive right to ingress and egress to the Premises for the uses set
forth herein. Tenant, its agents and employees shall have the non-exclusive right to ingress and
egress to the Premises twenty-four (24) hours a day, seven (7) days a week, for the purpose of
construction, maintenance and service of the Improvements.
ARTCILE 11. Signs. Tenant, at its sole cost and expense, shall install or affix any and all
necessary signs on or about the Premises in locations mutually agreed to by the parties and in
accordance with applicable laws.
ARTICLE 12. Notices. All notices, requests, demands, elections, consents, approvals and
other communications hereunder must be in writing (each such, a "Notice") and addressed as
follows (or to any other address which either party may designate by Notice):
If to Tenant:
Mr. C. Samuel Kissinger
Village Manager
Village of Key Biscayne
85 West McIntyre Street
Key Biscayne, FL 33149
With a copy to:
Weiss Scrota Heilman Pastoriza & Guedes, P.A.
2665 South Bayshore Drive, Suite 420
Miami, Florida 33133
Attn: Steven W. Zelkowitz, Esq.
If to Landlord:
Tesaurus Holdings, Inc.
240 Crandon Boulevard
Suite 212
Key Biscayne, Florida 33149
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Any Notice required by this Lease to be given or made within a specified period of time, or
on or before a date certain, shall be deemed to have been duly given only if delivered by band,
evidenced by written receipt; sent by certified mail, return receipt requested, postage and fees
prepaid; or sent by overnight delivery service, evidenced by written receipt A Notice sent by
certified mail shall be deemed given as of the receipt date indicated on the return recceipt. All other
Notices shall be deemed given when received.
ARTICLE 13. Insurance.
13.1 Landlord agrees that Tenant may self -insure against any loss or damage which could
be covered by a comprehensive general public liability insurance policy. Landlord and Tenant agree
that the insurance policy limits currently held by Tenant under the Florida Municipal Insurance Trust
shall be maintained, at TENANT'S expense, during the Term of this Lease.
13.2 Landlord shall, throughout tl)e Term, maintain at its sole cost the following
insuranceV vIA p(ivitiv jet :a_2(
a) Comprehensive general liability insurance. Such policy shall contain inclusive
' limits TWitoestmence of not less than $2,000,000 combined single limit and include Tenant as an
additional insured.
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All policies referred to above shalt be taken out with insurers licensed to do business in
Florida, and contain an undertaking by the insurers to notify Tenant not less than thirty (30) days
prior to any material change, cancellation, or termination.
ARTICLE 14. Taxes. Landlord shall pay to the appropriate taxing authority on or before
the applicable due date all Taxes, as hereinafter defined, incurred during the Term. The term
"Taxes" shall mean the cost of all real estate, personal property and other ad valorem taxes.
ARTICLE 15. Miscellaneous.
15.1 In any proceeding which either party may prosecute to enforce its rights
hereunder, the unsuccessful party shall pay all costs incurred by the prevailing party (as such
parties are hereafter defined), including reasonable attorneys' fees.
15.2 This Lease shall be governed by and construed in accordance with the Laws of the
State of Florida applicable to contracts made and to be performed entirely in the State.
15.3 The terms, covenants, conditions, and provisions of this Lease shall bind and inure to
the benefit of Landlord and Tenant and their respective legal representatives, successors, and assigns.
15.4 This Lease may be executed in several counterparts, each of which shall
constitute an original and all of which shall constitute the same agreement.
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15.5 If any term, covenant, condition or provision of this Lease (or the application thereof
to any circumstance or Person) shall be invalid or unenforceable to any extent, the remaining terms,
covenants, conditions and provisions of this Lease shall not be affected thereby; and each remaining
term, covenant, condition and provision of this Lease shall be valid and shall be enforceable to the
fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions
and provisions of this Lease would prevent the accomplishment of the original intent of the
agreement between the parties.
15.6 Upon execution of This Lease, Landlord shall provide Tenant with any existing 4
surveys, title insurance policies, environmental reports, engineering reports and any other material
documentation, information, correspondence, and materials related to the Premises_ ws d-4-1
a-� `b .
15.6 If applicable and in accordance with State Law, the following statement is hereby
made: "RADON GAS: Radon is a natural occurring radioactive gas. When it has accumulated
in a building in sufficient quantities, radon gas 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 the State. Additional information regarding radon and radon testing may be
obtained from your County Public Health Unit.
15.7 All rights and remedies of the parties hereunder or at law or in equity are
cumulative, and the exercise of any right or remedy shall not be taken to exclude or waive the
right to the exercise of any other, subject to the express limitations set forth in this Lease, if any.
No waiver by either party of any failure to perform any of the terms, covenants, and conditions
hereunder shall operate as a waiver of any other prior or subsequent failure to perform any of the
terms, covenants, or conditions herein contained.
15.8 Upon termination or expiration of this Lease, the parties shall remain liable for all
obligations and liabilities that have accrued prior to the date of termination or expiration.
15.9 No elected official, officer, administrator, official, agent or employee of the
Landlord or Tenant shall be charged personally or held contractually liable under any term or
provisions of this Lease or of any supplement, modification or amendment to this Lease or
because of any breach thereof, or because of its or their execution or attempted execution.
15.10 The relationship of Landlord and Tenant hereunder is the relationship of landlord
and tenant. The parties expressly acknowledge that it is not their intent to create any rights or
obligations in any third person or entity under this Lease Nothing contained herein shall be
deemed or construed as creating the relationship of principal and agent, partners, joint venturers,
or any other similar such relationship between the parties hereto.
15.11 Both parties have substantially contributed to the drafting and negotiation of this
Lease and this Lease shall not, solely as a matter of judicial construction, be construed more
severely against one of the parties than any other. The parties hereto acknowledge that they have
thoroughly read this Lease, including all exhibits and attachments hereto, and have sought and
received whatever competent advice and counsel was necessary for them to form a- full and
complete understanding of all rights and obligations herein.
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15.12 No modification, amendment, or alteration in the terms or conditions contained
herein shall be effective unless contained in a written document prepared with the same or
similar formality as this Lease and executed by the Landlord and Tenant.
15.13 This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements, and understandings applicable to the matters contained herein and
the parties agree that there are no commitments, agreements or understandings concerning the
subject matter of this Lease that are not contained in this document. Accordingly, the parties
agree that no deviation from the terms hereof shall be predicated upon any prior representations
or agreements, whether oral or written. The foregoing shall not alter, impair or diminish the
effect and enforceability of the Professional Services Agreement.
15.14 The Tenant does not waive any rights of sovereign immunity that it has under
applicable law. Notwithstanding anything contained in this Lease to the contrary, in no event
shall Tenant be liable for any consequential and/or punitive damages in connection with this
Lease.
15.15 All approvals and consents required to be obtained hereunder must be in writing
to be effective. Unless otherwise specifically provided to the contrary, any consent or approval
required by a party to this Agreement shall not be unreasonably withheld, conditioned or
delayed.
15.16 Tenant cannot, and hereby specifically does aot, waive or relinquish any of its
regulatory approval or enforcement rights and obligations as it may relate to regulations of
general applicability which may govern the Premises, any improvements thereon, or any
operations at the Premises. Nothing in this Lease shall be deemed to create an affirmative duty of
Tenant to abrogate its sovereign right to exercise its police powers and governmental powers by
approving or disapproving or taking any other action in accordance with its zoning and land use
codes, administrative codes, ordinances, rules and regulations, federal laws and regulations, state
laws and regulations, and grant agreements. In addition, nothing herein shall be considered
zoning by contract.
15.17 WAIVER OF TRIAL BY JURY. THE LANDLORD AN]) TENANT EACH
WAIVE ANY AND ALL RIGHTS THAT IT MAY NOW OR HEREAFTER HAVE UNDER
THE LAWS OF TIE -UNITED STATES OF AMERICA OR ANY STATE, TO A TRIAL BY
JURY OF ANY AND ALL ISSUES ARISING DIRECTLY OR INDIRECTLY IN ANY
ACTION OR PROCEEDING RELATING TO THIS LEASE OR ANY TRANSACTIONS
CONTEMPLATED THEREBY OR RELATED THERETO. IT IS INTENDED THAT THIS
WAIVER SHALL APPLY TO ANY AND ALL DEFENSES, RIGHTS, AND/OR
COUNTERCLAIMS IN ANY SUCH ACTION OR PROCEEDING.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day
and year first above written.
WITNESSES: TESAURUS HOLDINGS, INC., a Florida
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City Clerk
APPROVED:
City A%6mey
corporation
By:
v 1 President
f31c 5
VILLAGE OF KEY BISCAYNE, a Florida
municipal corporation
(7°_,
By: Ida/0A-
C. Samuel Kissinger, Iage Manager
a
Addendum to Lease Agreement
This addendum is attached to the "Lease" between TESAURUS HOLDINGS, INC., a
Florida corporation, whose address is 240 Crandon Boulevard, Suite 212, Key Biscayne,
Florida 33149 ("Landlord") and the VILLAGE OF KEY BISCAYNE, a Florida
municipal corporation, whose mailing address is 83 West McIntyre Street, Key Biscayne,
Florida 33149 ("Tenant").
Pursuant to ARTICLE 1. Demise; Term; Rent. Section 1.2
It is understood by both parties that time is of the essence regarding the "Commencement
Date". "Commencement Date" is defined as the date of Substantial Completion of the
Improvements (as defined) but not to exceed beyond six (6) months from the date of the
signing of the lease agreement. After that date this lease shall be considered null and
void in its entirety. The "Tenant" or "Landlord" may extend the lease beyond that date
by addendum as allowed in the "Lease".
IN WITNESS WHEREOF, Landlord and Tenant have executed this Addendum as of
the date October 5, 2001
Ellen Blasi
Vice President
TESAURUS HOLDINGS, INC.
WITNESS:
1
Beverly Kerr
M • red Giraldo
C. Samuel Kissinger,
Village Manager
ATTEST:
ity Clerk
APPROVED:
City Attorney
-sr) -