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HomeMy WebLinkAboutR-03-0810J-03-671 7/17/03 RESOLUTION NO. 43 3 - 810 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO ISSUE A REVOCABLE LICENSE, IN SUBSTANTIALLY THE ATTACHED FORM, TO THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT ("SFWMD") FOR THE TEMPORARY USE OF AND ACCESS TO SPRING GARDENS POINT PARK, LOCATED AT 601 NORTHWEST 7th STREET ROAD, MIAMI, FLORIDA, FOR THE INSTALLATION OF A WATER MONITORING WELL IN THE ADJACENT MIAMI RIVER AND CONSTRUCTION OF A PEDESTRIAN ACCESS RAMP TO SAID WELL. WHEREAS, the South Florida Water Management District ("SFWMD"), an agency of the State of Florida, has the responsibility to monitor the stage and flow capacity of bodies of water for purposes of managing flood control in the South Florida area; and WHEREAS, the SFWMD intends to place several water stage monitoring wells in the Miami River to gauge the capacity of this waterway to, among other things, absorb storm water runoff, particularly during the rainy season, and thus facilitate planning for future flood control projects; and CCN72 A R� CITY COMMISSION MEETING OF J111- 1 7 2003 Resolutieia No. 03- 810 WHEREAS, the SFWMD has identified a location in the Miami River adjacent to the City -owned Spring Gardens Point Park ("Park"), located at 601 Northwest 7th Street Road, Miami, Florida, as a preferred site for a stage monitoring well; and WHEREAS, the SFWMD requests that the City provide access to the Park for the purposes of installing the well in the waterway and constructing a pedestrian access ramp to that structure; and WHEREAS, to maximize the benefit of data collection during the local rainy season, the SFWMD must commence construction and installation activity immediately, complete data collection by the end of November 2003, and remove the structures by the end February 2004; and WHEREAS, the City Attorney has advised that a Revocable License is the appropriate legal instrument to allow this activity; and WHEREAS, this action is taken with the understanding and approval of the Spring Garden Civic Association, which has a management agreement with the City to operate and develop the Park; Page 2 of 4 iJ3- 810 NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings found in the Preamble of this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorized to issue a Revocable License, in substantially the attached form, to the South Florida Water Management District, for temporary use and access to Spring Gardens Point Park, located at 601 Northwest 7th Street Road, Miami, Florida, for the installation of a water monitoring well in the adjacent Miami River and construction of a pedestrian access ramp to said well. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.11 �i If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. Page 3 of 4 �;l3- 810 PASSED AND ADOPTED this 17th day of July , 2003. ATTEST• - PRIS ILLA A. P OMON .4zl✓ CITY CLERK APPROVED,A'�TOJFORM,,�3tD CORRECTNESS BJPAdD VILARELLO TY POftORNEY 15:tr:AS:BSS TINUEL A. DIAZ, MAYOR Page 4 of 4 il3- 810 REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO SOUTH FLORIDA WATER MANAGEMENT DISTRICT FOR THE USE OF CITY -OWNED PROPERTY COMMONLY KNOWN AS SPRING GARDEN POINT PARK LOCATED AT 601 NORTHWEST 7TH STREET, MIAMI, FLORIDA iJ3- 810 TABLE OF CONTENTS 1. PURPOSE 2 2. OCCUPANCY AND USE PERIOD 2 3. DUTY TO OPERATE FOR PUBLIC PURPOSE 2 4. INTEREST CONFERRED BY THIS AGREEMENT 3 5. CONDITION OF THE PROPERTY AND MAINTENANCE 4 6. ALTERATIONS, ADDITIONS OR REPLACEMENTS 6 7. VIOLATIONS, LIENS AND SECURITY INTERESTS 6 8. CITY ACCESS TO FACILITY 7 9. INDEMNIFICATION AND HOLD HARMLESS 7 10. INSURANCE 8 11. NO LIABILITY 10 12. TAXES AND FEES 10 13. CANCELLATION BY REQUEST OF EITHER OF THE PARTIES WITHOUT CAUSE 10 14. TERMINATION BY CITY MANAGER FOR CAUSE 10 15. NOTICES 11 16. ADVERTISING 11 17. OWNERSHIP OF IMPROVEMENTS 12 18. SURRENDER OF PROPERTY 12 19. SEVERABILITY 13 20. NO ASSIGNMENT OR TRANSFER 13 21. NONDISCRIMINATION 13 22. NO DISCRIMINATION IN HIRING 13 23. MINORITY/WOMEN BUSINESS UTILIZATION 14 24. WAIVER OF JURY TRIAL 14 25. WAIVER 14 ii tll3- 810 26. AMENDMENTS AND MODIFICATIONS 14 27. COURT COSTS AND ATTORNEY (S)' FEES 15 28. COMPLIANCE WITH ALL LAWS APPLICABLE 15 29. ENTIRE AGREEMENT 15 30. CONFLICT OF INTEREST 15 31. NO RECORDATION 15 EXHIBIT A - THE PROPERTY ��� ij 3 - 810 REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is entered this day of , 2003, between the City of Miami (the "City") a municipal corporation of the State of Florida and South Florida Water Management District, an agency created under the laws of the State of Florida (the "Licensee"). WHEREAS, the Licensee is one of the five district agencies created by the State of Florida to provide flood control protection and water supply to residents living and working in cities or farms within this region; and WHEREAS, Licensee is conducting a project within the Miami River to gathered stage information during the rainy season to further assess potential projects in the Miami Dade flood navigation program; and WHEREAS, Licensee has expressed to the City its interest in utilizing Spring Garden Point Park to temporary install a pedestrian ramp within the Property as described in Exhibit "A" attached hereto and made a part hereof, to access a stage monitoring well to be install in submerged land within the Miami River owned by the State of Florida adjacent to the Property; and WHEREAS, this Agreement is not assignable; and WHEREAS, this Agreement is revocable at will by the City and without the consent of the Licensee; and WHEREAS, this Agreement does not transfer an interest in real property including any leasehold interest in real property owned by the City; and WHEREAS, this Agreement does not confer a right to use any real property for any general purposes; and WHEREAS, this Agreement does not convey or transfer any right to exclude the City from any real property; NOW, THEREFORE, in order to carry out the intent as expressed herein and in consideration of the mutual agreements subsequently contained, the City and Licensee agree as follows: 03- 810 1. PURPOSE. The City is the owner of real property and improvements thereon at 601 Northwest 7th Street, Miami, Florida (the "Property"). The City has expressed its desire to assist the Licensee in accomplishing its purpose and in furtherance thereof authorizes the Licensee to use the Property for the temporary installation of a pedestrian ramp and access to a stage monitoring well under the conditions hereinafter set forth. The use of the Property is strictly limited to the temporary installation of a pedestrian ramp to access a stage monitoring well to be install within submerged land at the Miami River owned by the State of Florida adjacent to the Property (the "Permitted Use"). Any use of the Property not authorized under the Permitted Use must receive the prior written consent of the City Manager. This consent can be withheld for any or no reason, including, but not limited to, additional financial consideration. 2. OCCUPANCY AND USE PERIOD. The Effective Date of this agreement is the date on which Licensee has been notified that the agreement is fully executed ("Effective Date") and shall continue until the first to occur of the following: a) cancellation or termination by the express written agreement of the parties hereto; or b) cancellation or termination by request of any of the parties hereto, subject to the notice provisions of "Cancellation by Request of Either Of The Parties Without Cause" and "Termination By City Manager For Cause"; or C) automatic end of the License Agreement Use Period on February 28, 2004. 3. DUTY TO OPERATE FOR PUBLIC PURPOSE. Licensee, at all times during Licensee's use of the Property, shall: (i) utilize the Property solely for the temporary installation for an access ramp to stage monitoring well to be install within submerged land at the Miami River owned by the State of Florida adjacent to the Property. 2 ')3- 810 4. INTEREST CONFERRED BY THIS AGREEMENT. Licensee agrees that this Agreement has been issued by the City to authorize Licensee to use the Property solely for the limited purposes described under Section 3 of the Agreement and no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease and the rights of Licensee hereunder are not those of a tenant but are a mere personal privilege to do certain acts of a temporary character and to otherwise use the Property subject to the terms of this Agreement. No leasehold interest in the Property is conferred upon Licensee under the provisions hereof and Licensee does not and shall not claim at any time any leasehold estate or ownership interest in the Property by virtue of this Agreement or its use of the Property hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions or alterations to the Property which may be authorized by the City. 5. CONDITION OF THE PROPERTY AND MAINTENANCE. A. Licensee accepts the Property "As Is", in its present condition and without any representation by or on behalf of City, and agrees that City shall, under no circumstances, be liable for any latent, patent or other defects in the Property. Licensee, at its sole cost, shall construct a temporary pedestrian ramp and maintain the same during the Use Period in good order and repair at all times and in an attractive, clean, safe and sanitary condition an shall suffer no waste or injury thereto. B. Licensee agrees to make all changes necessary to the pedestrian access ramp at Licensee's sole cost and expense in order to comply with all City, County and State building code requirements for Licensee's use thereof. Licensee agrees to provide any and all security it deems necessary to protect its operations and equipment. 3 33- 810 6. ALTERATIONS, ADDITIONS OR REPLACEMENTS. Except in the event of an emergency, Licensee shall not make any repair or alteration required or permitted to be performed by Licensee without first receiving the written approval of the City Manager, which approval may be conditioned or withheld for any or no reason whatsoever, including a condition to pay additional fees if such alteration will affect the cost of services being provided by the City. If City approves such request, no repair or alteration shall be commenced until plans and specifications therefore shall have been submitted to and approved by the City Manager. In the event of an emergency, Licensee shall reasonably proceed to perform such repair work and shall immediately notify the City of such work. 7. VIOLATIONS, LIENS AND SECURITY INTERESTS. Licensee, at its expense and with due diligence and dispatch, shall secure the cancellation or discharge of or bond off same in the manner permitted by law, all notices of violations arising from or otherwise in connection with Licensee's improvements or operations in the Property which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors and materials men for all work and labor done at Licensee's request. Should any such lien be asserted or filed, regardless of the validity of said liens or claims, Licensee shall bond against or discharge the same within fifteen (15) calendar days of Licensee's receipt of notice of the filing of said encumbrance. In the event Licensee fails to remove or bond against said lien by paying the full amount claimed, Licensee shall pay the City upon demand any amount paid out by City, including City's costs, expenses and reasonable attorneys' fees. Licensee further agrees to hold City harmless from and to indemnify the City against any and all claims, demands and expenses, including reasonable attorney's fees, by reason of any claims of any contractor, subcontractor, material man, laborer or any other third person with whom Licensee has contracted or otherwise is found liable for, in respect to the Property. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, material man or supplier thereof against any part of the Property or any of the improvements thereon and each such contract shall provide that the 4 A)3- 810 contractor must insert a statement in any subcontract or purchase order that the contractor's contract so provides for waiver of lien and that the subcontractor, material person or supplier jointly and severally agree to be bound by such provision. 8. CITY ACCESS TO FACILITY. City and its authorized representative(s) shall have at all times access to the Property. Licensee acknowledges that the City has entered into a Management Agreement with Spring Garden Civic Association (the "Association") dated August 9, 1999 for the management, operation, and maintenance of the Spring Garden Point Park. Licensee's access to the Property shall be coordinated through the Association. The City shall have access to and entry into the Property at any time to (a) inspect the Property, (b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, Licensee not having cured such matter within ten (10) days of such notice, (c) to assure Licensee's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules and regulations and (d) for other purposes as may be deemed necessary by the City Manager in the furtherance of the City's corporate purpose; provided, however, that City shall make a diligent effort to provide at least 24 -hours advance notice and Licensee shall have the right to have one or more of its representatives or employees present during the time of any such entry. The City shall not be liable for any loss, cost or damage to the Licensee by reason of the exercise by the City of the right of entry described herein for the purposes listed above. The making of periodic inspection or the failure to do so shall not operate to impose upon City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 9. INDEMNIFICATION AND HOLD HARMLESS. The Licensee shall indemnify, hold harmless and defend the City its officials and employees, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising during Licensee's use and occupancy of the Property, for any personal injury, loss of life or damage to personal property and/or real property sustained in or on the Property, by reason of or as a result of Licensee's use or operations thereon, and from 5 03- 810 and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorney's fees, expenses and liabilities incurred in an about the defense of any such claims and the investigation thereof, even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, or officials. Licensee further acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Property, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Property. The grant of this license without a license fee is specific, separate and distinct consideration for the grant of this Indemnity, which shall survive cancellation of this agreement. The Licensee acknowledges the sufficiency of this consideration. 10. INSURANCE. Licensee, at its sole cost, shall obtain and maintain in full force and effect at all times throughout the period of this Agreement, the following insurance coverage: A. Commercial General liability insurance on a Comprehensive General liability coverage form, or its equivalent, including premises, operations and contractual coverage's against all claims, demands or actions for bodily injury, personal injury, death or property damage occurring in or about the Property with such limits as may be reasonably requested by the City from time to time but not less than $300,000 per occurrence combined single limit for bodily injury and property damage. The City shall be named as Additional Insured on the policy or policies of insurance. B. Automobile liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this agreement. The policy or policies of insurance shall contain a combined single limit of at least $500,000 for bodily injury and property damage. The requirements of this provision will be waived upon submission of a written statement from Licensee that no automobiles are used to conduct business. 6 ��3-- 810 C. "All Risk" property insurance against loss or damage by fire, windstorm, with such endorsements for extended coverage, vandalism, malicious mischief, flood and special coverage, insuring 100% of the replacement cost of Licensee's fixtures, equipment, furniture and all other personal property in and about the Property. This requirement may be waived provided that Licensee executes a full release holding the City harmless for any damages incurred by Licensee due to the above mentioned cause as defined in a standard All Risk policy. D. Worker's Compensation in the form and amounts required by State law. E. The City's Risk Management Administrator, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Licensee. The Licensee shall provide any other insurance or security reasonably required by the City. F. The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to the City. Said notice should be delivered to the City of Miami, Department of Risk Management Administrator, 444 SW 2 Avenue, 9`f' Floor, Miami, Florida 33130, with copy to City of Miami, Office of Asset Management, 444 SW 2 Avenue, 3rd Floor, Miami, Florida 33130, or such other address that may be designated from time to time. G. A current Evidence and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Office of Asset Management of the City at the commencement of the term of this Agreement and a new Evidence and Policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State, with the following qualifications as to management and financial strength: the company should be rated "B" as to management, and no less than class "V" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the company holds a valid Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and is a member of the Florida Guarantee Fund. Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required, does not constitute a waiver of the Licensee's obligation to fulfill the insurance requirements herein. 0)3- 810 In the event Licensee shall fail to procure and place such insurance, the City may cancel this agreement for cause, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Licensee to the City as an additional fee upon demand and shall in each instance be collectible on the first day of the month or any subsequent month following the date of payment by the City. Licensee's failure to procure insurance shall in no way release Licensee from its obligations and responsibilities as provided herein. 11. NO LIABILITY. In no event shall the City be liable or responsible for damage to the personal property, improvements, fixtures and/or equipment belonging to or rented by Licensee, its officers, agents, employees, invitees or patrons, including without limitation, damages resulting from fire, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or from hurricane or any act of God or any act of negligence of Licensee, its officers, employees, agents, invitees, or patrons or any person whomsoever whether such damage or injury results from conditions arising at or about the Property or upon other portions of the Property or from other sources. 12. TAXES AND FEES. Licensee shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Property and/or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Property by Licensee, including, but not limited to, ad valorem taxes, fire fees and parking surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent of the contested tax or fee with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. 8 M - 810 13. CANCELLATION BY REQUEST OF EITHER OF THE PARTIES WITHOUT CAUSE. Either party may cancel this Agreement at any time with thirty (30) days written notice to the non -canceling part to the effective date of the cancellation. 14. TERMINATION BY CITY MANAGER FOR CAUSE. If Licensee in any manner violates the terms, provisions, restrictions and conditions of this Agreement, then, and in the event, after ten (10) days written notice given to Licensee by the City Manager within which to cease such violation or correct such deficiencies, and upon failure of Licensee to do so after such written notice within said ten (10) day period, this Agreement shall be automatically canceled at such time without the need for further action by the City. 15. NOTICES. All notices or other communications which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to City and Licensee at the address indicated herein or as the same may be changed from time to time or for purposes of canceling this Agreement, the City may serve notice by posting it at the Property. Such notice shall be deemed given on the day on which personally served; or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier: CITY OF MIAMI City of Miami City Manager 3500 Pan American Drive Miami, FL 33133 City of Miami Director Economic Development Department 444 SW 2 Avenue, Suite 325 Miami, FL 33130 LICENSEE South Florida Water Management District Miami -Dade Regional Service Center 172-A West Flagler Street Miami, Florida 33130 9 *J3- 810 COPY TO City of Miami City Attorney's Office 444 SW 2 Avenue, Suite 945 Miami, FL 33130 16. ADVERTISING. Licensee shall not permit any signs or advertising matter to be placed either in the interior or upon the exterior of the Property without having first obtained the approval of the Director, which approval may be withheld for any or no reason, at his/her sole discretion. Licensee shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Licensee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this Agreement, Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Property. If any part of the Property is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Property an appropriate sign indicating City's having issued this Agreement. 17. SURRENDER OF PROPERTY. In either event of cancellation pursuant to "Cancellation By Request Of Either Of The Parties Without Cause" or "Termination By City Manager For Cause", or at the expiration of the time limited by the notice, Licensee shall peacefully surrender the Property broom clean and in good condition and repair. Upon surrender, Licensee, at its sole cost, and expense, shall promptly remove the pedestrian ramp, all its personal property, trade fixtures and equipment and Licensee shall repair any damage to the Property caused thereby. Should to 03- 810 Licensee fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. City may require Licensee to restore the Property so that the Property shall be as it was on the Effective Date. In the event Licensee fails to remove the pedestrian ramp, its personal property, equipment and fixtures from the Property within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as City sees fit, all at Licensee's sole cost and expense. 18. SEVERABILITY AND SAVINGS CLAUSE. Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unlawful under the laws of the State of Florida or the City, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the City, and in such event, the remaining terms and conditions of this Agreement shall remain unmodified and in full force and effect. 19. NO ASSIGNMENT OR TRANSFER. Licensee cannot assign, pledge, sell, give, dispose , in whole or in part, or transfer its privilege of occupancy and use (or any interest therein) granted unto it by this Agreement. 20. NONDISCRIMINATION. Licensee represents and warrants to the City that Licensee does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Licensee's use of the Park on account of race, color, sex, religion, age, handicap, marital status or national origin. 03- 810 21. NO DISCRIMINATION IN HIRING. In the performance of this Agreement or any extension thereof, Licensee and/or its authorized agents shall not discriminate against any employee or applicant for employment because of sex, age, race, color, religion, ancestry or national origin. Licensee and/or its authorized agents will take affirmative action to insure that minority applicants are employed and that employees are fairly treated during employment without regard to their sex, age, race, color, religion, ancestry, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. 22. MINORITY/WOMEN BUSINESS UTILIZATION. Licensee shall make every good faith effort to purchase/contract fifty-one percent (51%) of its annual goods and services requirements from Hispanic, Black and Women businesses/professionals registered/certified with the City Office of Minority/Women Business Affairs. Such lists will be made available to the Licensee at the time of the issuance of the Agreement by the City and updates will be routinely provided by the City's Office of Minority/Women Business Affairs. 23. WAIVER OF JURY TRIAL. The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury, or to file permissive counter claims, in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Licensee entering into the subject transaction. ki iJ3- 810 24. WAIVER. No failure on the part of the City to enforce or insist upon performance of any of the terms of this Agreement, nor any waiver of any right hereunder by the City, unless in writing, shall be construed as a waiver of any other term or as a waiver of any future right to enforce or insist upon the performance of the same term. 25. AMENDMENTS AND MODIFICATIONS. No amendments or modifications to this Agreement shall be binding on either party unless in writing, signed by both parties and approved by the City Manager. The City Manager is authorized to amend or modify this Agreement as needed excepting that any increase in the term, or of any use by Licensee, or other contribution by the City to Licensee shall require prior City Commission approval. 26. COURT COSTS AND ATTORNEY (S)' FEES. In the event it becomes necessary for the City to institute legal proceedings to enforce or interpret the provisions of this Agreement, Licensee shall pay the City's court costs and through all trial and appellate levels in the event the City prevails. Each party shall bear its own attorneys fees regardless of the outcome of any litigation. It is the express intent of the parties hereto that in no event will the City be required to pay Licensee's attorney's fees and court costs for any action arising out of this Agreement. In the event that Licensee's waiver under this section is found to be invalid then Licensee agrees that the City's liability for Licensee's attorney's fees and court costs shall not exceed the sum of $100.00. In the event that the waiver and limitations contained herein are found to be invalid, or are otherwise not upheld, then the provisions of this Section shall become null and void and each party shall be responsible for its own attorney's fees and costs. 27. COMPLIANCE WITH ALL LAWS APPLICABLE. Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local laws, ordinances and regulations is a condition of this Agreement, and Licensee shall comply therewith as the same presently exist 13 ij3- 810 and as they may be amended hereafter. This Agreement shall be construed and enforced according to the laws of the State of Florida. 28. ENTIRE AGREEMENT. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations or representations not expressly set forth in this Agreement are of no force or effect. This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties, and the parties covenant that this Agreement shall not be construed in favor of or against either of the parties. 30. CONFLICT OF INTEREST. Licensee is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. sec . and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. Licensee further covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City. Licensee further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Licensee, its employees or associated persons, or entities must be disclosed in writing to the City. 31. NO RECORDATION. This Agreement shall not be recorded in the public records of Miami -Dade County, Florida. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. 14 03- 810 ATTEST: Priscilla A. Thompson City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: CITY OF MIAMI, a municipal corporation of the State of Florida Lo Joe Arriola City Manager APPROVED AS TO FORM AND CORRECTNESS: Diane Ericson, Director Alejandro Vilarello Department of Risk Management City Attorney LICENSEE: WITNESS: South Florida Water Management District, an agency created under the Laws of the State of Florida Signature Signature Print Name Print Name President Signature Title Print Name 15 v)3- 810