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HomeMy WebLinkAboutItem 03b Approval of Short-Term Lease Agreement with Manheim Remarketing, Inc. for Storage of Automobiles on City-owned Properties - Lease Agreement for 843 Marshall Farms RoadContact Name: Contact Number: lqqklY �,�/ ocoee fIorida AGENDA ITEM COVER SHEET Meeting Date Craig Shadrix, ACM 407-905-3111 Item # May 5, 2020 3 b. Reviewed By: Department Director: City Manager: Subject: Approval of short-term parking license agreement with Man hei Remarketing, Inc. for use of City owned property located at 843 Marshall Farms Road for temporary storage of automobile inventory Background Summary: Manheim operates one of the largest automobile auctions in the world at its location on Story Road in Ocoee. This business supports many of our local businesses weekly due to the volume of units bought and sold. The current COVID 19 crisis and associated economic effects have tremendously affected the Manheim auction in Ocoee, resulting in losses enumerated in the millions. Representatives of Manheim recently reached out to the City seeking opportunities for storage of additional inventory of automobiles until the auction is able to resume full operations, citing increasing revenue losses and the exorbitant expense of shipping excess inventory to areas outside the City of Ocoee. Working with the City Manager's office, staff came up with land options that could provide both relief to Manheim and offset some of the City's anticipated revenue losses. The City owns property located at 843 Marshall Farms Road that was purchased several years ago for a future retention pond when Maguire Road (Phase V) is widened. The property is currently not used by the City for any purpose, and lends itself easily for temporary storage of cars. The City attorney prepared a temporary license in the form of a Parking License Agreement (see attached) for the property that may be executed by the City Manager under the current emergency declarations in place and ratified after execution by the City Commission. The license agreement provides for a price per acre per month of $1,600 and Manheim would be using approximately 2.5 acres of the total 4.1 acres of land on this property. This price was confirmed using comparable lease prices in Ocoee and central Florida and vetted by real estate professionals representing both the City and Manheim. The term of the license agreement is for 6 months with monthly renewals after the initial 6 -month term. The agreement is terminable by either party with 30 days' notice. Staff is requesting that the City Commission authorize the execution of the agreement with Manheim. Issue: Should the City Commission approve execution of a temporary parking license agreement of real property owned by the City located at 843 Marshall Farms Road with Manheim Remarketing, Inc.? Recommendations: Staff recommends the City Commission approve execution of a temporary parking license agreement of real property owned by the City located at 843 Marshall Farms Road with Manheim Remarketing, Inc. Attachments: Parking License Agreement Financial Impact: This temporary license agreement could generate up to $4,000 monthly of unplanned revenue to the City. Type of Item: (please mark with an `Y) Public Hearing For Clerk's Dept Use: Ordinance First Reading Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda X Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Review ed by ( ) 2 N/A N/A N/A Parking Agreement License City of Ocoee — Marshall Farms Rd. Property THIS PARKING LICENSE AGREEMENT (this "Agreement") is entered into as of the_ day of April. 2020 by and between the CITY OF OCOEE, FLORIDA, a Florida municipal corporation ("City") and MANHEIM REMARKETING, INC., a Delaware corporation ("Auto Auction'). WHEREAS, with respect to the COVID-19 crises: on March 1, 2020, Governor DeSantis issued an Executive Order declaring a Public Health Emergency for the State of Florida; on March 13, 2020 Orange County Mayor Jerry Demings issued an Executive Order declaring a State of Local Emergency within both unincorporated and incorporated Orange County, Florida; and on March 25, 2020 the Ocoee City Commission adopted a Resolution declaring a Local State of Emergency for the City of Ocoee (the "Ocoee Emergency Resolution'); and WHEREAS, the Auto Auction operates an auto auction business within the City of Ocoee and keeps an inventory of vehicles on its own properties; and WHEREAS, due to the COVID-19 crises, the Auto Auction is experiencing an increase in vehicle inventories and no longer has the capacity at its own properties to store all of the vehicles in the ownership, possession or control of the Auto Auction; and WHEREAS, the Auto Auction needs to store excess capacity vehicles outside of but in close proximity to its own properties; and WHEREAS, the City has an interest in working with local businesses to assist when feasible the viability of such businesses during this Local State of Emergency; and WHEREAS, the City owns that certain property containing approximately 4.1 1 acres located at 843 Marshall Farms Road, Ocoee, FL with a parcel ID Number of 19-22-28-0000-00-013 (the "City Property"), and WHEREAS, the City and the Auto Auction believe that the City Property is a suitable location for the storing of excess capacity vehicles on a temporary basis. NOW, THEREFORE, for and in consideration of the promises and agreements contained herein and other good and valuable consideration, the parties agree as follows: Recitals. The above recitals are true and correct and incorporated herein by this reference. 2. Term. Effective at 12:01 a.m. on the day following execution by the Auto Auction and the City Manager of the City and continuing until 11:59p.m on October 31, 2020 (the "Effective Period"), but subject to change as provided in Section 10 below, the City does hereby grant to the Auto Auction a license for the parking of the Auto Auction's excess vehicles on the two and one half (2.5) acre portion of the City Property depicted on Exhibit "A" attached hereto (the "Parking Area"). The Parking Area is hereby accepted by Auto Auction in its "as is" condition and the City shall be under no obligation to make any improvements or repairs to the same. 3. License Fee. Auto Auction shall pay, in advance, the sum of $4,000.00 per month (the "License Fee") plus applicable sales tax, for the use of the Parking Area. However, the License Fee shall not be payable until such time as the Auto Auction commences use of the Parking Area. Auto Auction shall immediately notify the City of the date Auto Auction commences use of the Parking Area. If the commencement date is other than the first day of a month, the License Fee for the initial month shall be prorated based on the commencement date. Auto Auction shall have the exclusive use of the Parking Area for the parking of vehicles as described herein; however, nothing herein shall prevent the City from other uses of the City Property so long as such uses do not interfere with the rights of the Auto Auction as set forth herein. Said payment is a flat monthy fee, regardless of the number of vehicles actually stored on the Parking Area, and shall be payable to City and delivered to City at 150 N. Lakeshore Dr., Ocoee, FL 34761, Attention: Finance Department, or to such other place as the City shall designate. The License Fee shall increase annually on each May I` commencing on May 1, 2021 by an amount equal to three percent (3%) of the License Fee in effect for the prior year, without giving effect to any offsets, concessions, reductions or abatements. Auto Auction shall not be responsible for the payment of real property taxes or assessments on the Parking Area. In the event any payment due hereunder is not paid by the end of the fifteenth (15th) day after invoicing, then the same shall be a default hereunder and Auto Auction shall incur and pay a service charge in the amount of five percent (5%) of the delinquent payment, and this obligation shall survive termination of this Agreement. 4. Additional Parkine Areas. If Auto Auction requires additional storage areas other than those licensed hereby, it shall advise City of the number of additional vehicles needed and the time period during which storage of those additional vehicles will be needed and, subject to availability in City's sole discretion, City shall make same available to Auto Auction in other City owned properties mutually acceptable to both parties. In no event is City required to make additional parking areas available to Auto Auction. Once City and Auto Auction agree on additional parking areas to be made available to Auto Auction, this Agreement shat l be amended to increase the License Fee for the remainder of the term of the Agreement granted hereby. 5. Security Tower; Fencini; Vehicle Servicing. Subject to compliance with applicable laws, Auto Auction may, but shall not be obligated to, at its sole cost and risk install: (i) a security tower of up to forty- five feet (45') in height with accompanying security systems on the Parking Area in an area agreed to by City; and/or (ii) install temporary fencing on the perimeter and within the Parking Area. Auto Auction shall not provide mechanical repairs or service or wash its car inventory that is stored in the Parking Area; all such required repairs, service and washing shall be done at locations other than those owned by the City and other than public right of way. 6. Compliance with Laws; Assignment. Auto Auction, at its own cost, shall comply with, and cause Auto Auction's employees and customers to comply with, all laws, orders and regulations of applicable governmental authorities with respect to use of the Parking Area licensed hereby and all activities under this Agreement. No rights under this Agreement may be assigned by Auto Auction, except to a parent, subsidiary or affiliate Auto Auction, or to a business entity with which Auto Auction may merge, amalgamate or consolidate, subject to City's prior written consent and to any such assignee entering into a direct agreement with City assuming all obligations of Auto Auction hereunder. 7. Release and Indemnification. Auto Auction shall be liable for any injuries to any employee or customer of Auto Auction or others driving or occupying vehicles that are the subject matter of the Agreement granted hereby, and any other persons in or using the Parking Area who are injured by any employee or customer of Auto Auction. Auto Auction shall be solely liable for any damage or injury to any of its vehicles that are parked in the Parking Area and for any injury to the driver(s) or occupant(s) of such vehicles. Auto Auction shall indemnify, defend and hold harmless each of the Released Parties from and against all claims, actions demands, damages and expenses of whatever nature arising from any act, omission or negligence of Auto Auction or its contractors, agents, servants, employees, customers or invitees, or arising from any accident, injury, or damage whatsoever caused to any person, or to the property of any person, or from any violation of applicable law including, without limitation, any law, regulation, or ordinance, occurring in or about the Parking Area, where such accident, damage or injury results or is claimed to have resulted from an act or omission on the part of Auto Auction or its contractors, licensees, agents, servants, employees, customers or invitees. This indemnity and hold harmless agreement shall include indemnity against all obligations, damages, judgments, penalties, claims, charges, costs, expenses and liabilities incurred in or in connection with any such claim or proceeding brought thereon, and the 2 defense thereof, including, without limitation, reasonable attorneys' fees at all tribunal levels and court costs. The foregoing shall apply notwithstanding the insurance limits that Auto Auction elects to maintain. None of the Released Parties assumes any liability whatsoever for theft or damage to any such vehicles or their contents, or for personal injury to the driver(s) or occupant(s) of such vehicles. Auto Auction shall pay for any damages caused to the Parking Area (or any equipment or structures therein), or persons or property contained therein, by the driver or occupants of any of Auto Auction's vehicles. 8. Insurance. Simultaneously with execution of this Agreement, Auto Auction shall provide City proof that Auto Auction maintains (i) general liability insurance with a minimum $1,000,000 occurrence and $2,000,000 general aggregate limit, (ii) auto liability insurance with a minimum $1,000,000 limit for bodily injury/property damage, (iii) workers' compensation insurance, including employers liability, with limits of a minimum $1,000,000/$1,000,000/$1,000,000, and (iv) umbrella insurance providing excess limits over the general liability, auto liability and employers liability, in a coverage amount that is no less than $5,000,000. Each of the Released Parties shall be included as additional insureds on the liability, auto and umbrella policies. Auto Auction's insurance shall be primary and non-contributory, and shall include a waiver of all rights of subrogation against each of the Released Parties, and the certificates of insurance provided for below shall so state. All such insurance shall be maintained with carriers rated at least A- VII by AM Best, and certificates of insurance shall at all times be maintained with City, which provide for advance notice of cancellation (minimum 10 days for non payment of premium, thirty (30) days for all other reasons). The provisions of this Section shall survive termination of this Agreement. 9. Attorney Fees. In the event of any controversy arising under or relating to this Agreement or its breach, the prevailing party shall be entitled to the payment for all costs and attorneys' fees (both trial and appellate) incurred in connection therewith, and this obligation shall survive termination of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and venue shall be exclusively in state court (or federal court, but only if federal court jurisdiction is exclusive) sitting in Orange County, Florida. 10. Termination. The Agreement granted hereby shall be in effect for the Effective Period set forth above, unless sooner terminated by City or the Auto Auction on thirty (30) days' notice to the other party for any reason or no reason, with or without cause. Following the initial Effective Period, the Agreement shall automatically continue on a month-to-month basis until terminated as provided in this Section 10. In the event of any termination, any payment for the month in which such termination occurs shall be prorated. Each of the parties specifically acknowledges and agrees that this Agreement is intended to create a revocable license on the terms and conditions set forth herein and is specifically not intended to create a lease. Upon any termination of this Agreement, Auto Auction at its sole cost and expense shall immediately remove the vehicles and any other equipment of Auto Auction from the Parking Area. The provisions of Florida law pertaining to leases are specifically not applicable to this Agreement. H. Brokers. Each of the parties represent that there are no claims for brokerage commissions or finders fees in connection with this Agreement, and each agrees, to the extent permitted by law, to indemnify and hold the other harmless from any and all liabilities, costs and expenses (including attorneys' fees, both trial and appellate) resulting from any such claim that arises as a result of the acts of the indemnifying party, and this obligation shall survive termination of this Agreement. 12. Entire Aereement. This Agreement expresses the entire agreement between the parties hereto respecting its subject matter and supersedes any prior understandings or agreements. Any modifications must be in writing, signed by the party sought to be bound, in order to be effective. In the event any provision of this Agreement is invalid or unenforceable the remaining provisions shall be enforceable in accordance with their terms. 13. Successors and Assigns. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns, subject, however, to the limitations contained herein. 14. Notices. Notices under this Agreement shall be given by e-mail, overnight courier, or certified mail, return receipt requested, postage prepaid. Notice shall be effective upon receipt or when delivery is refused or unavailable due to an unnoticed change of address. Notices shall be addressed, if to City, Rob Frank, City Manager, City of Ocoee, 150 N. Lakeshore Dr., Ocoee, FL 34761, Email: rfrank("a)ocoee.ora, and to Scott Cookson, City Attorney, Shuffield, Lowman & Wilson, P.A., 1000 Legion Place, Suite 1700, Orlando, FL 32801, Email: scookson a'shulfeld.com and, if to Auto Auction, to (i) c/o Cox Enterprises, Inc., 6205-A Peachtree Dunwoody Road, Atlanta, GA 30328, Attn: Vice President of Real Estate, (ii) Sheley, Hall & Williams, P.C., 303 Peachtree Street, Suite 4440, Atlanta, GA 30308, Attn: David L. Lester, Esq., and (iii) Manheim Remarketing, Inc., 11801 W. Colonial Drive, Ocoee, FL 34761. Any party may change the addresses for notices to such party upon giving at least ten (10) days prior written notice of such change of address. 15. Liens. Notwithstanding any other provision of this Agreement to the contrary, Auto Auction shall not have the power to subject the interest of any of the Released Parties in the Parking Area to any construction liens or liens of any kind nor shall any provision in this Agreement ever be construed as empowering Auto Auction to encumber the title or interest of any of the Released Parties in the Parking Area. In order to comply with the provisions of Section 713. 10, Florida Statutes, it is specifically provided that neither Auto Auction nor anyone claiming by, through or under Auto Auction, including but not limited to contractors, subcontractors, materialmen, mechanics and laborers, shall have any right to file or place any kind of lien whatsoever upon the Parking Area or any improvement thereon (including the filing of any notice of commencement), and any such liens are specifically prohibited. All parties with whom Auto Auction may deal are put on notice that Auto Auction has no power to subject the interest of any of the Released Parties to any claim or lien of any kind or character, and all such persons so dealing with Auto Auction must look solely to the credit of Auto Auction. Auto Auction shall put all such parties with whom Auto Auction may deal on notice of the terms of this Section. This obligation shall survive termination of this Agreement. 16. Execution by City. This Agreement is executed by the City Manager of the City pursuant to the Ocoee Emergency Resolution. Notwithstanding the foregoing, the City Manager shall endeavor to have this Agreement ratified by the City Commission at the May 5, 2020 meeting of the City Commission. In the event this Agreement is not ratified by the City Commission at the May 5, 2020 meeting of the City Commission, notwithstanding anything contained herein to the contrary, this Agreement shall terminate and be of no further force or effect except for those provisions that specifically survive termination. This Agreement may be executed by either party electronically. (Signature Pages to Follow) 4 IN WITNESS WHEREOF, the City and the Auto Auction have caused this instrument to be executed by their duly authorized elected officials, partners, and/or officers as of the day and year first above written. Signed, sealed and delivered in the presence of: Pf-l- GWO- Joan Como (Apr 30, 2020) Print Name Joan Como India Hawkins (Apr 30, 2020) Print Name India Hawkins STATE OF Georgia COUNTY OF Fulton AUTO AUCTION. MAN`MIM REMARKETING, INC., a Delaware corporation By: Print Name: Luis A. Avila Its: Assistant Secretary The foregoing instrument was acknowledged before the by means of 0 physical presence or O online notarization, this 30th day of April , 20 20 by Luis A. Avila as Assistant Secretary of Manheim Remarketing, Inc. , a Delaware limited liability company, on behalf of the company, who is personally known to me or who has produced as identification. Signature of Notary �% 3 SH'4,g �o- o..•..... o . Sharon F. Weber �. `�i . N,Y C04t ; .� iP r _. Name of Notary (Typed, Printed or Stamped) � .�'�'� 1Vl ssoiT r Commission Number (if not legible on seal): T : , : m My Commission Expires (if not legible on sea): co -C : ,c Ar 5 Signed, sealed and delivered in the presence of: Print Name: SU S T,n M t'{ 5 Print Name OiA, A Pj t Mer FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approver] as to form and legality this2A�dday of _Pl , 2020. SHUFFIELD, LOWMAN AND WILSON, P.A. By. 'Jak-::� Scott . Cookson, Esq City Att mey `� STAT �OFFLOR16A COUNTY OF ORANGE CITY: CITY OWOEE, O A By: Craig D. Frank, City Manager I HEREBY CERTIFY that on this day, before me, an officer duly authgdzed in the State and County aforesaid to take acknowledgments, personally appeared by means of Vr physical presence or ❑ online notarization CRAIG SHADRIX for ROBERT D. FRANK, City Manager of the CITY OF OCOEE, FLORIDA and that he acknowledged executing the same in the presence of two subscribing witnesses, freely and voluntarily under authority duly vested in them by said municipality. WITNESS m hand and o ial seal in the County 020. tl/% t'V'xr� Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible on seal): AN and State last aforesaid this 2� day of �y Punk State d FIM" J` . Sherry Seaver c' �s My Conwossion GG 039216 p0' Expires 02/1112021 Signed, sealed and delivered in the presence of- Print f Print Name: Print Name CITY: CITY OF OCOEE, FLORIDA Rusty Johnson, Mayor Attest: Melanie Sibbitt, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE RATIFIED BY THE OCOEE CITY CITY OF OCOEE, FLORIDA. Approved as to COMMISSION AT A MEETING HELD ON form and legality this day of , 2020, UNDER 2020. AGENDA ITEM NO. SHUFFIELD, LOWMAN AND WILSON, P.A. MR City Attorney STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared by means of ❑ physical presence or ❑ online notarization RUSTY JOHNSON and MELANIE SIBBITT, personally known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE, FLORIDA and that they severally acknowledged executing the same in the presence of two subscribing witnesses, freely and voluntarily under authority duly vested in them by said municipality. WITNESS my hand and official seal in the County and State last aforesaid this day of , 2020. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible on seal): 7 Exhibit "A" Depiction of Parking Area Exhibit "A" Depiction of Property 1 &2 -In Lease