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2017-193-3298 - Agreement for Pedestrian Bridges and Maintenance with signed agreementRESOLUTION NO. 2017-193-3298 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS. FLORIDA, AUTHORIZING THE CITY MANAGER AND THE CITY CLERK TO EXECUTE AND ATTEST RESPECTIVELY THAT CERTAIN AGREEMENT WITH THE STADIUM FOR THE STADIUM TO PROVIDE THE OPERATIONS AND MAINTENANCE RESPONSIBILITIES FOR THE BRIDGES AND TUNNELS AROUND THE STADIUM TO BE CONSTRUCTED BY FDOT FUNDS, IN SUBSTANTIAL FORM AS THAT AGREEMENT ATTACHED HERETO AS EXHIBIT "A"; PROVIDING FOR THE ADOPTION OF REPRESENTATIONS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on July 13, 2016, the City Council of the City of Miami Gardens adopted Resolution Number 2016-125-3024, urging the Florida Department of Transportation (FDOT) and the Florida Turnpike Enterprise to provide and expedite funding and permitting for the construction of pedestrian bridges and tunnels around the Stadium, and WHEREAS, the project assists in the improvement of pedestrian safety and vehicle traffic flow on the heavily traffic area around the stadium, and WHEREAS, per the Resolution, the City would not expend any funds for these projects, and WHEREAS, the City's involvement will be to bid out the design-build project, the administrative work for reimbursement of the FDOT funds for the total project, and take ownership of the bridges and tunnels under easements, and WHEREAS, FDOT requires the City take ownership of the bridges and tunnels through the FDOT Funded Agreement, to be approved by Council, and Resolution No. 2017-193-3298 Page 1 WHEREAS, the operations and maintenance responsibilities of the bridges and tunnels will be provided by the Stadium, per the attached agreement between the City and Stadium, and WHEREAS, the City will not fund any maintenance or operations of the project elements, and WHEREAS, it is being requested that the City Council authorize the City Manager to execute a maintenance and operation agreement with the Stadium for the Stadium to provide the operations and maintenance responsibilities for the bridges and tunnels around the Stadium to be constructed by FOOT Funds NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA AS FOLLOWS: Section 1: ADOPTION OF REPRESENTATIONS: The foregoing Whereas paragraphs are hereby ratified and confirmed as being true, and the same are hereby made a specific part of this Resolution. Section 2: AUTHORIZATION: The City Council of the City of Miami Gardens hereby authorizes the City Manager and City Attorney to finalize the Agreement and the City Clerk to execute and attest respectively that certain Agreement with the Stadium for the Stadium to provide the operations and maintenance responsibilities for the bridges and tunnels around the stadium to be constructed by FDOT Funds, attached hereto as Exhibit "A". Section 3: EFFECTIVE DATE: This Resolution shall take effect immediately upon its final passage. Resolution No. 2017-193-3298 Page 2 PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS AT ITS REGULAR MEETING HELD ON DECEMBER 13, 2017. OLIVER GILBERT, III, MAYOR ATT^T: RONETTA TAY , MMC, CITLOR, MMC, CITY CLERK PREPARED BY: SONJA KNIGHTON DICKENS, CITY ATTORNEY SPONSORED BY: CAMERON D. BENSON, CITY MANAGER Moved by: VlCCjXciUO^^ ,Seconded byr[5Silj^m3Q5doif)fi| VOTE: Mayor Oliver Gilbert, III ^ (Yes) (No)Vice Mayor Erhabor Ighodaro, Ph.D. |^TYesi (No) Councilwoman Lisa C. Davis ^"(Yes) (No) Councilman Rodney Harris ^ (Yes) (No) Councilwoman Lillie Q. Odom ^ (Yes) (No) Councilwoman Felicia Robinson (Yes) (No) Councilman David Williams Jr (Yes) (No Resolution No. 2017-193-3298 Page 3 18605 NW 27th AVE Miami Gardens, Florida 33056 City of Miami Gardens Agenda Cover Memo Council Meeting Date: December 13, 2017 Item Type: (Enter X in box) Resolution Ordinance Other X Fiscal Impact: (Enter X in box) Yes No Ordinance Reading: (Enter X in box) 1st Reading 2nd Reading X Public Hearing: (Enter X in box) Yes No Yes No X Funding Source: N/A Advertising Requirement: (Enter X in box) Yes No X Contract/P.O. Required: (Enter X in box) Yes No RFP/RFQ/Bid #: X Sponsor Name Cameron Benson, City Manager Department: Public Works Short Title: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AUTHORIZING THE CITY MANAGER AND THE CITY CLERK TO EXECUTE AND ATTEST RESPECTIVELY THAT CERTAIN AGREEMENT WITH THE STADIUM FOR THE STADIUM TO PROVIDE THE OPERATIONS AND MAINTENANCE RESPONSIBILITIES FOR THE BRIDGES AND TUNNELS AROUND THE STADIUM TO BE CONSTRUCTED BY FDOT FUNDS, IN SUBSTANTIAL FORM AS THAT AGREEMENT ATTACHED HERETO AS EXHIBIT “A”; PROVIDING FOR THE ADOPTION OF REPRESENTATIONS; PROVIDING FOR AN EFFECTIVE DATE. Staff Summary: Background: On July 13, 2016, Council approved resolution 2016-125-3024 urging the Florida Department of Transportation (FDOT) and the Florida Turnpike Enterprise to provide and expedite funding and permitting for the construction of pedestrian bridges and tunnels around the stadium. The project assists in the improvement of pedestrian safety (residents and visitors) and vehicle traffic flow on such a heavily traffic area around the stadium. AGENDA ITEM K-18 MAINTENANCE OF PEDESTRIAN BRIDGES AND TUNNELS 18605 NW 27th AVE Miami Gardens, Florida 33056 Per the resolution, the City would not expend any funds for these projects totaling $17,857,125.00 (includes the design along with the construction, consultant to inspect the project, and the City’s administrative costs). The City’s involvement will be to bid out the design-build project, the administrative work for reimbursement of the FDOT funds for the total project, and take ownership of the bridges and tunnels under easements. Current Situation: FDOT requires the City take ownership of the bridges and tunnels through the FDOT funded agreement to be approved by Council in the December 13, 2017 Council meeting. However, the operations and maintenance responsibilities of the bridges and tunnels will be provided by the stadium per the attached agreement between the City and Stadium. The City will not fund any maintenance or operations of the project elements. Fiscal Impact: There is no fiscal impact. Proposed Action: It is recommended that the City Council authorize the City Manager to execute a maintenance and operation agreement with the stadium for the stadium to provide the operations and maintenance responsibilities for the bridges and tunnels to be constructed by FDOT Funds. Attachment: Exhibit A: Resolution 2016-125-3024 Exhibit B: Stadium Operations and Maintenace Agreement This document prepared by (and after recording return to): (This space reserved for Clerk) MAINTENANCE AND ACCESS AGREEMENT BETWEEN CITY OF MIAMI GARDENS AND SOUTH FLORIDA STADIUM LLC D/B/A HARD ROCK STADIUM This MAINTENANCE AND ACCESS AGREEMENT (“Agreement”) is made and entered into between the CITY OF MIAMI GARDENS, a municipal corporation of the State of Florida (“City”), and SOUTH FLORIDA STADIUM LLC D/B/A HARD ROCK STADIUM (“SFS”), this ___ day of ______________2017 (“Effective Date”). The City and SFS shall be collectively referred to herein as the “Parties.” WHEREAS, the City intends to design and construct an infrastructure project consisting of pedestrian bridges and tunnels as specifically described on the Concept Plans and the Overall Site Plan (collectively, “Plans”) attached as Exhibit “A” (collectively, “Project”) on the property (“Property”) shown on the Plans in order to provide safe pedestrian access for events held at Hard Rock Stadium (“Stadium”) subject to amendments that may be required by the Florida Department of Transportation and/or reasonably required the selected contractor, which Project shall be funded in accordance with the Funding Agreement entered into by and between the City and [INSERT STATE ENTITY] and dated [INSERT EFFECTIVE DATE OF FUNDING AGREEMENT] (“Funding Agreement”); and WHEREAS, the Project is deemed to be in the interest of public health, safety, and welfare for the City since the Project will provide a safer means for the public to access the Stadium from the Turnpike ramp road, N.W. 199th Street, and the Stadium ring road for events at the Stadium; and WHEREAS, the City and SFS agree that the Project provides a valuable benefit to the public; and WHEREAS, the purpose of this Agreement is to address the rights and responsibilities of the City and SFS for the maintenance of the Project after the City finalizes construction, including access for SFS, its successors and assigns, to the Project. NOW THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which is hereby acknowledged, the Parties agree as follows: Page 2 of 13 1. Upon the Effective Date, the City shall design and construct the Project, which Project shall be designed and constructed consistent with the Plans and in compliance with all applicable federal, state, and local laws and regulations, including but not limited to the Americans with Disabilities Act. 2. The City represents and warrants to SFS that the City owns the Project and has obtained all necessary rights from underlying property owners of the Property to design, construct, own, operate, and maintain the Project in perpetuity. SFS, as lessee, pursuant to the Lease dated July 6, 1988, (“Lease”) authorizes the City to construct the Project on the land subject to Lease, which authorization may be revoked if the City fails to comply with the terms of this Agreement, including, but not limited to, the City’s failure to provide SFS access to the Project pursuant to Paragraph 5 below. SFS and the Lessor(s) of the Property agree, subject to the terms and conditions herein, to execute any and all required easements in favor of the City and the Florida Department of Transportation as may be required for the Project. During the City’s construction of the Project, the City and its contractors shall be responsible for maintenance and Temporary Traffic Control (formerly the Maintenance of Traffic). Upon completion of Project construction by the City, the City shall provide SFS the final as-built Project plans, which have been approved by all applicable governmental authorities and which have been certified by the Project engineer. SFS shall have thirty (30) days to inspect the Project and provide the City with a list of material discrepancies and/or punch list items after its inspection and review of the certified as-built plans. The City must correct the discrepancies and/or punch list items to the satisfaction of SFS, and upon SFS’s written confirmation to the City accepting the City’s corrections, the construction of the Project shall be deemed complete (“Project Completion”), which shall not be unreasonably withheld or conditionally delayed. Upon Project Completion, SFS shall be responsible for maintaining the Project, at SFS’s expense, in accordance with the Maintenance Standards attached as Exhibit “B”, which shall be subject to applicable laws and regulations, including, without limitation, Florida Department of Transportation and City regulations. 3. The City shall have sole authority for the decisions associated with the construction of the Project and with respect to make all decisions relating to, and including the need for, change orders and supplemental agreements, it being understood that the City shall consult, and shall require the contractor to consult, in good faith with SFS on decisions that materially affect the design, engineering, construction, or operation of any elements of the Project. 4. The term of this Agreement shall be for the useful life of the Project (“Term”). The Parties may mutually agree in writing to extend the Term. However, upon the determination of an independent engineer, that a major capital repair or rebuild of the Project is required during the Term, SFS shall not be responsible for such repair or rebuild, but shall only be responsible for the continued maintenance obligations described in this Agreement. In such an instance, the City will make the sole determination of whether to repair, rebuild or to demolish the Project if not repaired or rebuilt. 5. SFS, its successors and assigns, guests, and invitees, shall have access to the Project and Property in perpetuity for purposes of fulfilling SFS’s maintenance obligations required by this Agreement, and for purposes of providing access to invitees and guests attending events and Page 3 of 13 functions at the Stadium. Except as outlined in Paragraph 4, the City shall not remove the Project located on land owned or leased by SFS (or its affiliates) without obtaining SFS’s (or its affiliate’s) prior written consent. This Paragraph 5 shall survive termination of this Agreement. 6. All notices required pursuant to the terms hereof, may be sent by first class United States Mail, facsimile transmission, hand delivery or express mail and shall be deemed to have been received by the end of five business days from the proper sending thereof unless proof of prior actual receipt is provided. Each party hereto, shall have the continuing obligation to notify each other of the appropriate persons for notices to be sent to pursuant to the terms of this agreement. Unless otherwise notified in writing, notices shall be sent to the following: To the City of Miami Gardens: Cameron D. Benson, City Manager 18605 NW 27th Avenue Miami Gardens, Florida 33056 With a copy to: Sonja K. Dickens, City Attorney 18605 NW 27th Avenue Miami Gardens, Florida 33056 To SFS: Marcus Bach-Armas 2269 NW 199th Street Miami Gardens, Florida 33056 With a copy to: Myles Pistorius, General Counsel 2269 NW 199th Street Miami Gardens, Florida 33056    The individual(s) identified as the person to receive notice hereunder shall have the authority to act on behalf of and to bind SFS and the City, respectively, as to all determinations required to be made under the terms of this Agreement. This Paragraph 6 shall survive termination of this Agreement.   7. SFS shall not, under any circumstances, assign this Agreement or its rights or duties without prior written authorization from the City, provided, however, that SFS may assign its rights and obligations under this Agreement to a third-party purchaser of the Stadium and/or SFS upon written notice to the City. 8. The City may, for its convenience and without cause, terminate this Agreement prior to the expiration of the Term by giving SFS written notice at least thirty (30) days prior to the effective date of the termination. Upon written notice of the City’s desire to terminate this Agreement, SFS shall continue to provide the maintenance obligations described herein as approved or directed in writing by the City Manager or his, or her, designee until the effective Page 4 of 13 date of such termination. Upon the effective date of the termination, the City shall assume the maintenance obligations of the Project pursuant to Exhibit “B”. This Paragraph 8 shall survive termination of this Agreement. 9. Either party may terminate this Agreement for cause immediately and upon written notice to the other party prior to the expiration of the Term should the terminating party determine that the other party has breached any provision of this Agreement, and such breach remains uncured thirty (30) days after the breaching party has been notified in writing of an alleged breach by the party seeking to terminate, it being understood that such cure period shall not apply to any breaches that are not reasonably capable of being cured. In the event of termination or expiration of this Agreement, SFS and City shall cooperate in good faith in order to effectuate a smooth and harmonious transition from SFS to the City or to any other person or entity the City may designate, and to continue providing, during such period of transition and prior to the effective date of termination or expiration, the same services provided to the City pursuant to the terms hereof. SFS will take all reasonable and necessary actions to transfer all records, etc. and data of the City in its possession in an orderly fashion to either the City or its designee in a hard copy and computer format. Upon the effective date of the termination, the City shall assume the maintenance obligations of the Project pursuant to Exhibit “B”. This Paragraph 9 shall survive termination of this Agreement. 10. SFS at its sole expense, shall obtain and keep in full force and effect during the Term, the following types and amounts of insurance with an insurance carrier or carriers rated A:X or better, according to A.M. Best Company Rating Guide, duly registered with the Secretary of State and authorized to conduct business in the State of Florida: (i) Commercial general liability insurance (occurrence insurance) including, without limitation, personal injury, property damage and contractual liability (applicable to the indemnity provisions of this Agreement), with minimum limits of One Million Dollars ($1,000,000) each occurrence and Two Million Dollars ($2,000,000) aggregate; (ii) Workers’ compensation insurance, including employer’s liability, complying with the statutory requirements of the State of Florida; (iii) Auto liability insurance for any owned, hired and non-owned vehicles with a minimum limit of One Million Dollars ($1,000,000) each accident; and (iv) Fifty Million Dollars ($50,000,000) umbrella liability coverage combined single limit no more restrictive than the underlying Commercial general liability, Automobile liability and Workers' compensation employer's liability policies. City and FDOT shall be named as additional insureds on said policy. The insurance requirements shall only apply to SFS’s performance of its obligations pursuant to this Agreement. 11. To the fullest extent permitted by law, and subject to the limitations of Section 768.28 Florida Statutes, each party will indemnify and hold harmless the other, its officials, officers, directors, partners, members, managers, shareholders, agents, contractors and employees (collectively, “Indemnified Parties”) from and against any and all claims, losses, expenses (including reasonable attorneys’ fees) or liabilities (collectively, “Claims”) of any kind Page 5 of 13 arising from or in any way related to the indemnifying party’s negligent or willful acts or omissions, or a breach of any term, condition, covenant, representation or warranty contained in this Agreement. Moreover, SFS shall indemnify and hold harmless the City from and against any third party claims for injuries relating to performance of its maintenance obligations of the Project as provided herein, unless such claims arise from the negligence or willful misconduct by the City or its agents. As owner of the Project, and to the fullest extent permitted by law, and subject to the limitations of Section 768.28, Florida Statutes, the City shall indemnify, defend, and hold harmless SFS, its officials, officers, directors, partners, members, managers, shareholders, agents, contractors and employees from and against any and all claims, losses, expenses (including reasonable attorneys’ fees) or liability of any kind arising from or in any way related to the City’s ownership of the Project and which is unrelated to SFS’s failure to comply with its maintenance obligations pursuant to this Agreement. The City shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of $200,000, or any claim or judgments or portions thereof, which, when totaled with all other occurrence, exceeds the sum of $300,000 from any and all personal injury or property damage claims, liabilities losses and causes of action which may arise solely as a result of the performance of this Agreement. One percent (1%) of the contract amount shall represent the consideration to be provided for this indemnification. 12. During the Term of this Agreement, to the extent required by law, SFS shall comply with the public records laws in accordance with Chapter 119, Florida Statutes. Specifically, SFS agrees to comply with Section 119.0701, Florida Statutes. Public records shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency, as defined in Section 119.011, Florida Statutes, as amended. The City shall make the sole determination of which records, if any, are exempt from inspection. This clause shall survive the duration of the Agreement. 13. Each party shall keep all books, records and rosters in accordance with regularly accepted accounting procedures, and shall make those documents available to the other party for inspection and audit at all times upon written request, it being understood that neither party shall audit the other party more than once each calendar year. 14. Miscellaneous Provisions. a. If any term or provision of this Agreement shall to any extent be held invalid or illegal by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Page 6 of 13 b. The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construes as a waiver of the violation or breach, or of any future violation, breach or wrongful conduct. c. No modification, amendment, or alteration of the terms and conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. d. This Agreement sets forth the full and complete understanding of the Parties as of the effective date, and supersedes any and all negotiations, agreements, and representations made or dated prior to this Agreement. e. This Agreement shall be construed and governed pursuant to Florida law. Any litigation between the Parties, which arises out of or is related to this Agreement, shall be maintained solely in the Florida state courts situated in Miami‐Dade County, Florida. Further, the Parties hereby expressly waive any right to trial by jury in any litigation between the party, which arise out of or is related to this Agreement. f. In the event that either party is required to file legal action to enforce provisions under this Agreement, the prevailing party shall be entitled to its costs of collection, attorney’s fees and costs, and interest at the maximum rate allowable by law. g. This Paragraph 14 and all subparts shall survive termination of this Agreement. [SIGNATURES APPEAR ON THE FOLLOWING PAGES]  Page 7 of 13 IN WITNESS WHEREOF, the Parties have executed this Agreement on the date written below. ATTESTED BY: ______________________________ RONETTA TAYLOR CITY CLERK APPROVED AS TO FORM: SONJA DICKENS CITY ATTORNEY CITY OF MIAMI GARDENS By:___________________________ CAMERON D. BENSON CITY MANAGER Date:__________________________ STATE OF FLORIDA COUNTY OF _______________ The foregoing instrument was acknowledged before me this ___ day of _______________, 2017, by _________________________, as _________________________ of CITY OF MIAMI GARDENS, a municipal corporation of the State of Florida, who is personally known to me or produced _____________________ as identification and who did not take an oath. Notary Public My commission expires: Page 8 of 13 Signed in the Presence of: Name: Name: SOUTH FLORIDA STADIUM LLC By: Name: Title: Date:__________________________ STATE OF FLORIDA COUNTY OF _______________ The foregoing instrument was acknowledged before me this ___ day of _______________, 2017, by _________________________, as _________________________ of SOUTH FLORIDA STADIUM, LLC, a Florida limited liability company, who is personally known to me or produced _____________________ as identification and who did not take an oath. Notary Public My commission expires:    Page 9 of 13 JOINDER AND CONSENT The undersigned, DOLPHIN CENTER PROPERTIES, LLC (“DCP”), hereby executes this Joinder and Consent to the Maintenance and Access Agreement Between the City of Miami Gardens and South Florida Stadium LLC dated ______________, ___, 2017 (“Agreement”), for the limited purpose of authorizing, pursuant to the terms of the Agreement: (1) the City of Miami Gardens’ construction of that portion of the Project on DCP’s property pursuant to the Plans, which Project shall not be removed from DCP’s property without DCP’s prior written authorization and (2) South Florida Stadium LLC’s (“SFS”) maintenance of, and access to, the Project. The authorization set forth in clause (1) immediately above may be revoked by DCP in the event the City fails to comply with the Agreement, including, but not limited to, the City’s failure to provide SFS access to the Project. Signed in the Presence of: Name: Name: DOLPHIN CENTER PROPERTIES LLC, a Florida limited liability company By: Name: Title: STATE OF FLORIDA COUNTY OF _______________ The foregoing instrument was acknowledged before me this ___ day of _______________, 2017, by _________________________, as _________________________ of DOLPHIN CENTER PROPERTIES, LLC, a Florida limited liability company, who is personally known to me or produced _____________________ as identification and who did not take an oath. Notary Public My commission expires: [Notarial Seal] Page 10 of 13 JOINDER AND CONSENT The undersigned, COUNTY LINE SOUTH PROPERTIES, LLC (“CLSP”), hereby executes this Joinder and Consent to the Maintenance and Access Agreement Between the City of Miami Gardens and South Florida Stadium LLC dated ______________, ___, 2017 (“Agreement”), for the limited purpose of authorizing, pursuant to the terms of the Agreement: (1) the City of Miami Gardens’ construction of that portion of the Project on CLSP’s property pursuant to the Plans, which Project shall not be removed from CLSP’s property without CLSP’s prior written authorization and (2) South Florida Stadium LLC’s (“SFS”) maintenance of, and access to, the Project. The authorization set forth in clause (1) immediately above may be revoked by CLSP in the event the City fails to comply with the Agreement, including, but not limited to, the City’s failure to provide SFS access to the Project. Signed in the Presence of: Name: Name: COUNTY LINE SOUTH PROPERTIES, LLC, a Florida limited liability company By: Name: Title: STATE OF FLORIDA COUNTY OF _______________ The foregoing instrument was acknowledged before me this ___ day of _______________, 2017, by _________________________, as _________________________ of COUNTY LINE SOUTH PROPERTIES, LLC, a Florida limited liability company, who is personally known to me or produced _____________________ as identification and who did not take an oath. Notary Public My commission expires: [Notarial Seal] Exhibit “A” THE PROJECT Exhibit “B” PROJECT MAINTENANCE STANDARDS This Exhibit “B” provides the inspection and maintenance standards for the Project. The purpose of these standards is to preserve the overall structural integrity, user safety, and appearance of the Project. I. GENERAL CLEAN-UP. Sidewalks: Clean and functional, no trip hazard greater than ½ ” deep. Lighting: 90% of lights must be functioning. Litter/Sweeping: Area is clear of litter. Project ramps, sidewalks, curbs, gutters and parking areas to be swept but debris shall not be swept or blown into the roads. Project deck areas shall be cleaned and washed at least once a year or as needed. For painted surfaces, paint surfaces as needed for aesthetics and protect the underneath surface from corrosion. Turf Condition: Grass attractive and mowed. Vegetation: Attractive and pruned. Trash Receptacles: Clean and emptied on a regular basis. Utilities: Maintain light fixtures and other necessary utilities. II. USER SAFETY. The Project should be inspected on a regular basis to verify that all user safety related elements are in serviceable condition. Areas to inspect include: A. All guardrails, handrails, rub rails, toe plates, fencing, and other features intended for user safety should be checked to ensure they have not been structurally compromised. There should be no sharp edges, burrs, protrusions or other abnormalities that could result in bodily injury to the user. B. Deck surfaces should be kept free of foreign objects and inspected to verify that no damage has occurred that might present a trip or slip hazard. III. STRUCTURAL INTEGRITY. At least one inspection should be performed each year to ascertain the structural condition of the Project. This visual inspection should include a review of the Project to assess whether physical #6129669 v4 damage has occurred from an impact. This may include damage to the ends of the bridge from maintenance or vehicles, or in the case of a bridge spanning the road, damage to the underside or bottom chords from high vehicle collision or fires.  IV. DÉCOR Any décor affixed to any element of the Project shall be compliant in all respects with applicable law. V. IMPROVEMENTS. SFS may, in performing its maintenance obligations, make temporary or permanent improvements to the Project (e.g., safety barriers, lighting, fencing, etc.) from time-to-time upon written notice to the City, it being understood that (a) any such permanent improvements shall comply with all applicable laws; and (b) any permanent improvements installed by SFS shall become the exclusive property of the City at the time of installation. VI. PROJECT DEFECTS. SFS shall not be responsible for any maintenance obligation or other liability relating to or resulting from patent and/or latent design and/or construction defects on the Project. MAINTENANCE AND ACCESS AGREEMENT BETWEEN CITY OF MIAMI GARDENS AND SOUTH FLORIDA STADIUM LLC D/B/A HARD ROCK STADIUM This MAINTENANCE AND ACCESS AGREEMENT ('Agreement'") is made and entered into between the CITY OF MIAMI GARDENS, a municipal corporation of the State of Florida ("City "), and SOUTH FLORIDA STADIUM LLC D/B/A HARD ROCK STADIUM ("SFS"), this I3^av of 2017 ("Effective Date"). The City and SFS shall be collectively referred to herein as the "Parties." WHEREAS, the City intends to design and construct an infrastructure project consisting of pedestrian bridges and tunnels as specifically described on the Concept Plans and the Overall Site Plan (collectively, "Plans") attached as Exhibit "A" (collectively, "Project") on the property ("Property") shown on the Plans in order to provide safe pedestrian access for events held at Hard Rock Stadium ("Stadium") subject to amendments that may be required by the Florida Department of Transportation and/or reasonably required the selected contractor, which Project shall be funded in accordance with the Funding Agreement entered into by and between the City and the Florida Department of Transportation ("Funding Agreement"); and WHEREAS, the Project is deemed to be in the interest of public health, safety, and welfare for the City since the Project will provide a safer means for the public to access the Stadium from the Turnpike ramp road, N.W. 199th Street, and the Stadium ring road for events at the Stadium; and WHEREAS, the City and SFS agree that the Project provides a valuable benefit to the public; and WHEREAS, the purpose of this Agreement is to address the rights and responsibilities of the City and SFS for the maintenance of the Project after the City finalizes construction, including access for SFS, its successors and assigns, to the Project. NOW THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which is hereby acknowledged, the Parties agree as follows: 1. Upon the Effective Date, the City shall design and construct the Project, which Project shall be designed and constructed consistent with the Plans and in compliance with all applicable federal, state, and local laws and regulations, including but not limited to the Americans with Disabilities Act. 2. The City represents and warrants to SFS that the City owns the Project and has obtained all necessary rights from underlying property owners of the Property to design, construct, own, operate, and maintain the Project in perpetuity. SFS, as lessee, pursuant to the Lease dated July 6, 1988, ("Lease") authorizes the City to construct the Project on the land subject to Lease, which authorization may be revoked if the City fails to comply with the terms of this Agreement, including, but not limited to, the City's failure to provide SFS access to the Project pursuant to Paragraph 5 below. SFS and the Lessor(s) of the Property agree, subject to the terms and conditions herein, to execute any and all required easements in favor of the City and the Florida Department of Transportation as may be required for the Project. During the City's construction of the Project, the City and its contractors shall be responsible for maintenance and Temporary Traffic Control (formerly the Maintenance of Traffic). Upon completion of Project construction by the City, the City shall provide SFS the final as-built Project plans, which have been approved by all applicable governmental authorities and which have been certified by the Project engineer. SFS shall have thirty (30) days to inspect the Project and provide the City with a list of material discrepancies and/or punch list items after its inspection and review of the certified as-built plans. The City must correct the discrepancies and/or punch list items to the satisfaction of SFS, and upon SFS's written confirmation to the City accepting the City's corrections, the construction of the Project shall be deemed complete ("Project Completion"), which shall not be unreasonably withheld or conditionally delayed. Upon Project Completion, SFS shall be responsible for maintaining the Project, at SFS's expense, in accordance with the Maintenance Standards attached as Exhibit "B". which shall be subject to applicable laws and regulations, including, without limitation, Florida Department of Transportation and City regulations. 3. The City shall have sole authority for the decisions associated with the construction of the Project and with respect to make all decisions relating to, and including the need for, change orders and supplemental agreements, it being understood that the City shall consult, and shall require the contractor to consult, in good faith with SFS on decisions that materially affect the design, engineering, construction, or operation of any elements of the Project. 4. The term of this Agreement shall be for the useful life of the Project ("Term"). The Parties may mutually agree in writing to extend the Term. However, upon the determination of an independent engineer, that a major capital repair or rebuild of the Project is required during the Term, SFS shall not be responsible for such repair or rebuild, but shall only be responsible for the continued maintenance obligations described in this Agreement. In such an instance, the City will make the sole determination of whether to repair, rebuild or to demolish the Project if not repaired or rebuilt. 5. SFS, its successors and assigns, guests, and invitees, shall have access to the Project and Property in perpetuity for purposes of fulfilling SFS's maintenance obligations required by this Agreement, and for purposes of providing access to invitees and guests attending events and functions at the Stadium. Except as outlined in Paragraph 4, the City shall not remove the Project located on land owned or leased by SFS (or its affiliates) without obtaining SFS's (or its affiliate's) prior written consent. This Paragraph 5 shall survive termination of this Agreement. 6. All notices required pursuant to the terms hereof, may be sent by first class United States Mail, facsimile transmission, hand delivery or express mail and shall be deemed to have been received by the end of five business days from the proper sending thereof unless proof of prior actual receipt is provided. Each party hereto, shall have the continuing obligation to notify each other of the appropriate persons for notices to be sent to pursuant to the terms of this agreement. Unless otherwise notified in writing, notices shall be sent to the following: To the City of Miami Gardens: Cameron D. Benson, City Manager 18605 NW 27'" Avenue Miami Gardens, Florida 33056 With a copy to: Sonja K. Dickens, City Attorney 18605 NW 27*" Avenue Miami Gardens, Florida 33056 To SFS: Marcus Bach-Armas 2269 NW 199'" Street Miami Gardens, Florida 33056 With a copy to: Myles Pistorius, General Counsel 2269 NW 199'" Street Miami Gardens, Florida 33056 The individual(s) identified as the person to receive notice hereunder shall have the authority to act on behalf of and to bind SFS and the City, respectively, as to all determinations required to be made under the terms of this Agreement. This Paragraph 6 shall survive termination of this Agreement. 7. SFS shall not, under any circumstances, assign this Agreement or its rights or duties without prior written authorization from the City, provided, however, that SFS may assign its rights and obligations under this Agreement to a third-party purchaser of the Stadium and/or SFS upon written notice to the City. 8. The City may, for its convenience and without cause, terminate this Agreement prior to the expiration of the Term by giving SFS written notice at least thirty (30) days prior to the effective date of the termination. Upon written notice of the City's desire to terminate this Agreement, SFS shall continue to provide the maintenance obligations described herein as approved or directed in writing by the City Manager or his, or her, designee until the effective date of such termination. Upon the effective date of the termination, the City shall assume the maintenance obligations of the Project pursuant to Exhibit "B". This Paragraph 8 shall survive termination of this Agreement. 9. Either party may terminate this Agreement for cause immediately and upon written notice to the other party prior to the expiration of the Term should the terminating party determine that the other party has breached any provision of this Agreement, and such breach remains uncured thirty (30) days after the breaching party has been notified in writing of an alleged breach by the party seeking to terminate, it being understood that such cure period shall not apply to any breaches that are not reasonably capable of being cured. In the event of termination or expiration of this Agreement, SFS and City shall cooperate in good faith in order to effectuate a smooth and harmonious transition from SFS to the City or to any other person or entity the City may designate, and to continue providing, during such period of transition and prior to the effective date of termination or expiration, the same services provided to the City pursuant to the terms hereof. SFS will take all reasonable and necessary actions to transfer all records, etc. and data of the City in its possession in an orderly fashion to either the City or its designee in a hard copy and computer format. Upon the effective date of the termination, the City shall assume the maintenance obligations of the Project pursuant to Exhibit "B". This Paragraph 9 shall survive termination of this Agreement. 10. SFS at its sole expense, shall obtain and keep in full force and effect during the Term, the following types and amounts of insurance with an insurance carrier or carriers rated A:X or better, according to A.M. Best Company Rating Guide, duly registered with the Secretary of State and authorized to conduct business in the State of Florida: (i) Commercial general liability insurance (occurrence insurance) including, without limitation, personal injury, property damage and contractual liability (applicable to the indemnity provisions of this Agreement), with minimum limits of One Million Dollars ($1,000,000) each occurrence and Two Million Dollars ($2,000,000) aggregate; (ii) Workers' compensation insurance, including employer's liability, complying with the statutory requirements of the State of Florida; (iii) Auto liability insurance for any owned, hired and non-owned vehicles with a minimum limit of One Million Dollars ($1,000,000) each accident; and (iv) Fifty Million Dollars ($50,000,000) umbrella liability coverage combined single limit no more restrictive than the underlying Commercial general liability. Automobile liability and Workers' compensation employer's liability policies. City and FDOT shall be named as additional insureds on said policy. The insurance requirements shall only apply to SFS's performance of its obligations pursuant to this Agreement. 11. To the fullest extent permitted by law, and subject to the limitations of Section 768.28 Florida Statutes, each party will indemnify and hold harmless the other, its officials, officers, directors, partners, members, managers, shareholders, agents, contractors and employees (collectively, "Indemnified Parties") from and against any and all claims, losses, expenses (including reasonable attorneys' fees) or liabilities (collectively, "Claims") of any kind arising from or in any way related to the indemniiying party's negligent or willful acts or omissions, or a breach of any term, condition, covenant, representation or warranty contained in this Agreement. Moreover, SFS shall indemnify and hold harmless the City from and against any third party claims for injuries relating to performance of its maintenance obligations of the Project as provided herein, unless such claims arise from the negligence or willful misconduct by the City or its agents. As owner of the Project, and to the fullest extent permitted by law, and subject to the limitations of Section 768.28, Florida Statutes, the City shall indemnify, defend, and hold harmless SFS, its officials, officers, directors, partners, members, managers, shareholders, agents, contractors and employees from and against any and all claims, losses, expenses (including reasonable attorneys' fees) or liability of any kind arising from or in any way related to the City's ownership of the Project and which is unrelated to SFS's failure to comply with its maintenance obligations pursuant to this Agreement. The City shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of $200,000, or any claim or judgments or portions thereof, which, when totaled with all other occurrence, exceeds the sum of $300,000 from any and all personal injury or property damage claims, liabilities losses and causes of action which may arise solely as a result of the performance of this Agreement. One percent (1%) of the contract amount shall represent the consideration to be provided for this indemnification. 12. During the Term of this Agreement, to the extent required by law, SFS shall comply with the public records laws in accordance with Chapter 119, Florida Statutes. Specifically, SFS agrees to comply with Section 119.0701, Florida Statutes. Public records shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency, as defined in Section 119.011, Florida Statutes, as amended. The City shall make the sole determination of which records, if any, are exempt from inspection. This clause shall survive the duration of the Agreement. 13. Each party shall keep all books, records and rosters in accordance with regularly accepted accounting procedures, and shall make those documents available to the other party for inspection and audit at all times upon written request, it being understood that neither party shall audit the other party more than once each calendar year. 14. Miscellaneous Provisions. a. If any term or provision of this Agreement shall to any extent be held invalid or illegal by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. b. The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construes as a waiver of the violation or breach, or of any future violation, breach or wrongful conduct. c. No modification, amendment, or alteration of the terms and conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. d. This Agreement sets forth the full and complete understanding of the Parties as of the effective date, and supersedes any and all negotiations, agreements, and representations made or dated prior to this Agreement. e. This Agreement shall be construed and governed pursuant to Florida law. Any litigation between the Parties, which arises out of or is related to this Agreement, shall be maintained solely in the Florida state courts situated in Miami-Dade County, Florida. Further, the Parties hereby expressly waive any right to trial by jury in any litigation between the party, which arise out of or is related to this Agreement. f. In the event that either party is required to file legal action to enforce provisions under this Agreement, the prevailing party shall be entitled to its costs of collection, attorney's fees and costs, and interest at the maximum rate allowable by law. g. This Paragraph 14 and all subparts shall survive termination of this Agreement. [SIGNATURES APPEAR ON THE FOLLOWING PAGES] IN WITNESS WHEREOF, the Parties have executed^tHfAgr^ment on the date written below. CITY MIAMIA^ARDENS ATTESTED BY: w „■ .... RONETTA TAYLOR^' City clerk ^ APPROVED AS TO FORM: ONJ CIT CAMERON D. BENSON CITY MANAGER Date:_ DICKENS ATTORNEY STATE OF FLORIDA COUNTY OF lAiatvAi 'V^g- .isThe foregoing instrument was acknowledged before me this M day of"D€Cie.v>vV^^, 2017, by OgyViejrOn , as of CITY of MIAMI gardens, a municipalcorpdTation of the ^tate of Florida, (Qio is personally known to me^r produced as identification and who did not/teke an oath. Notary Public My commission expires: -^,1070 LATORIAWRIGHTIc M ':*] '^^^'^OMMISSIONIFF988502EXPIRES: May 3,2020? '"^ThfuWota/y Public UndBfwrltw. Signed in the Presence of:SOUTH FLORIDA STADIUM LLC Name:£zaJLsJ-ior Name:. Name: Th.,,. ^ Title: Pfrs/^e^4 CE^ Date: I STATE OF FLORIDA COUNTY OF UlaVWy-rYXdlg^ The foregoing instrument was acknowledged before me this day of r>reW\VXY , 2017, by TQOfN GAay<'vn<:e\ , as '\>C^<<^(VeV>\ » CLo of__SQ1JIH FLORIDA STADIUM, LLC, a Florida limited liability company, who is personally known to tx\£) or produced as identification and who did not take an oath. Notary Public My commission expires: \\ bielskis my commission # GG020475 EXPIRES August 11.2020 JOINDER AND CONSENT The undersigned, DOLPHIN CENTER PROPERTIES, LLC ("DCP"), hereby executes this Joinder and Consent to the Maintenance and Access ^reement Between the City of Miami Gardens and South Florida Stadium LLC dated 2017 ("Agreement"), for the limited purpose of authorizing, pursuant to the terms of the Agreement: (1) the City of Miami Gardens' construction of that portion of the Project on DCP's property pursuant to the Plans, which Project shall not be removed from DCP's property without DCP's prior written authorization and (2) South Florida Stadium LLC's ("SES") maintenance of, and access to, the Project. The authorization set forth in clause (1) immediately above may be revoked by DCP in the event the City fails to comply with the Agreement, including, but not limited to, the City's failure to provide SFS access to the Project. Signed in the Presence of:DOLPHIN CENTER PROPERTIES LLC, a Florida limited liability company Name:. Name: (\ju\rA Name Title: h l( Y STATE OF FLORIDA COUNTY OF K\\C:.YY\\ - The foregoing instrument was acknowledged before me this day of 2017, by TrvVvt (r\Ctyf\ n vc<\ , as V CFC\ of DOLPHIN CENTERJOPERTIES^LLC. a Florida limited liability company, ^ho is ^rsonalTy kn^ov^ to In^ or produced as identification and who did not take an oath. ihihi - Notary Public My commission expires: )SV {\ ^ ZjC^T-Cj [Notarial Seal] ■ifV.'!KATIE BIELSKIS ■\ MY COMMISSION # GG020475 EXPIRES Augutt 11.2020 JOINDER AND CONSENT The undersigned, COUNTY LINE SOUTH PROPERTIES, LLC ("CLSP"), hereby executes this Joinder and Consent to the Maintenance and Access Agreement B^ween the City of Miami Gardens and South Florida Stadium LLC dated _, 2017 ("Agreement"), for the limited purpose of authorizing, pursuant to the terms of the Agreement: (1) the City of Miami Gardens' construction of that portion of the Project on CLSP's property pursuant to the Plans, which Project shall not be removed from CLSP's property without CLSP's prior written authorization and (2) South Florida Stadium LLC's ("SES") maintenance of, and access to, the Project. The authorization set forth in clause (1) immediately above may be revoked by CLSP in the event the City fails to comply with the Agreement, including, but not limited to, the City's failure to provide SFS access to the Project. Signed in the Presence of: Name: U Name: (jxjttA COUNTY LINE SOUTH PROPERTIES, LLC, a Florida limited liability company Name: IQi Title STATE OF FLORIDA COUNTY OF iHyr/Vpt The foregoing instrument was acknowledged before me this day of , 2017, by Tg (nf, t n Kc 1 as of COUNTY LINE SOUTH PROPERTIES, LLC, a ^'lorida limited liability companyj[^ who is personally known to m^or produced as identifi<^tion and who did not take an oaTTT Notary Public My commission expires: ll 'ZCilC^ [Notarial Seal] KATIE BIELSKI8 .i; MY COMMISSION # GG020475 EXPIRES August 11, 2020 Exhibit "A" THE PROJECT El saaiiffiffisiriiiff /9^ K-V / / Sl 1111jiti ti11li / ■mr ':fcfcV [ 1 nM-r^^TilL--j 1-I?I ..1 i.TMT.TT ..lit. s^inT??^iil 'M:iii j:t*i t!.!i 1^? •! ■ f aDT-imrrnirnrTTTn:' • L jlIcATUB!j>i-aMiwiniiiiiiiwmiiii >ll<lll8ll«lliini1>rill|l!tffllllll!lliltH»lll» Exhibit "B" PROJECT MAINTENANCE STANDARDS This Exhibit "B" provides the inspection and maintenance standards for the Project. The purpose of these standards is to preserve the overall structural integrity, user safety, and appearance of the Project. I. GENERAL CLEAN-UP. Sidewalks: Clean and functional, no trip hazard greater than '/z" deep. Lighting: 90% of lights must be functioning. Litter/Sweeping: Area is clear of litter. Project ramps, sidewalks, curbs, gutters and parking areas to be swept but debris shall not be swept or blown into the roads. Project deck areas shall be cleaned and washed at least once a year or as needed. For painted surfaces, paint surfaces as needed for aesthetics and protect the underneath surface from corrosion. Turf Condition: Grass attractive and mowed. Vegetation: Attractive and pruned. Trash Receptacles: Clean and emptied on a regular basis. Utilities: Maintain light fixtures and other necessary utilities. II. USER SAFETY. The Project should be inspected on a regular basis to verify that all user safety related elements are in serviceable condition. Areas to inspect include: A. All guardrails, handrails, rub rails, toe plates, fencing, and other features intended for user safety should be checked to ensure they have not been structurally compromised. There should be no sharp edges, burrs, protrusions or other abnormalities that could result in bodily injury to the user. B. Deck surfaces should be kept free of foreign objects and inspected to verify that no damage has occurred that might present a trip or slip hazard. III. STRUCTURAL INTEGRITY. At least one inspection should be performed each year to ascertain the structural condition of the Project. This visual inspection should include a review of the Project to assess whether physical damage has occurred from an impact. This may include damage to the ends of the bridge from maintenance or vehicles, or in the case of a bridge spanning the road, damage to the underside or bottom chords from high vehicle collision or fires. IV. DECOR Any decor affixed to any element of the Project shall be compliant in all respects with applicable law. V. IMPROVEMENTS. SFS may, in performing its maintenance obligations, make temporary or permanent improvements to the Project (e.g., safety barriers, lighting, fencing, etc.) from time-to-time upon written notice to the City, it being understood that (a) any such permanent improvements shall comply with all applicable laws; and (b) any permanent improvements installed by SFS shall become the exclusive property of the City at the time of installation. VI. PROJECT DEFECTS. SFS shall not be responsible for any maintenance obligation or other liability relating to or resulting from patent and/or latent design and/or construction defects on the Project. #6129669 v4