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HomeMy WebLinkAboutR-02-1049J-02-813 9/17/02 RESOLUTION NO. 02-1049 A RESOLUTION OF THE CITY COMMISSION, WITH ATTACHMENT(S), AUTHORIZING THE CITY MANAGER TO EXECUTE A REVOCABLE LICENSE AGREEMENT, ("LICENSE"), IN SUBSTANTIALLY THE ATTACHED FORM, WITH EQUITY VENTURES REALTY, INC., FOR THE USE OF THE CERTAIN AREA UNDER I-95 BETWEEN SOUTHWEST 6TH AND 7TH STREETS AND SOUTHWEST 3RD AND 4TH AVENUES, MIAMI, FLORIDA, AS A CONSTRUCTION STAGING AREA FOR PUBLIX SUPERMARKETS, INC.; SAID LICENSE TO BE REVOCABLE -AT -WILL FOR A PERIOD OF SIX (6) MONTHS, AT A MONTHLY FEE OF $1,400.00, SUBJECT TO THE REQUIRED APPROVALS OF THE FLORIDA DEPARTMENT OF TRANSPORTATION AND THE FEDERAL HIGHWAY ADMINISTRATION. WHEREAS, on November 6, 1980, the City and Florida Department of Transportation ("FDOT") entered into a Memorandum of Agreement for a term of ninety-nine (99) years for the leasing of certain FDOT right-of-way for public purpose; and WHEREAS, the City caused a parking lot to be constructed on a portion of the leased property; and WHEREAS, this parking lot is not currently in use; and WHEREAS, Equity Ventures Realty, Inc.. ("Licensee") is the developer of the new Publix Supermarket at the northwest corner of S.W. 3rd Avenue and S.W. 7th Street; and ATTACH T f' CONTAINED S E P 2 6 2002 R"AkAm DID. 02-104 WHEREAS, Licensee has approached the City to request temporary use of certain area as described in Exhibit "A" as a construction staging area; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorizedll to execute a Revocable License Agreement ("License"), in substantially the attached form, with the Licensee, for use of the certain area under I-95 between Southwest 6th and 7th Streets and Southwest 3rd and 4th Avenues, Miami, Florida, as a construction staging area for Publix Supermarkets, Inc., said License to be revocable -at - will, for a period of six (6) months at a monthly fee of $1,400, subject to the required approvals of FDOT and the Federal Highway Administration. 1� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. Page 2 of 3 02-1049 Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor—" PASSED AND ADOPTED this 26th day of September , 2002. M�-_W_zk_ 6WOM�Wn �, ATTEST: PISCILLA A. THOMP ON CITY CLERK APPROVE]. -<S XO/F'ORM CORRECTNESS: t ,CEJ RO VILARELLO CI ATTORNEY 6559:tr:AS:BSS zi 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 3 3 02-x.049 8/29/02 REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO EQUITY VENTURES REALTY, INC. FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT: LOT UNDER I-95 BETWEEN SOUTHWEST 6TH AND 7TH STREETS AND SOUTHWEST 3RD AND e AVENUES MIAMI, FLORIDA 02-1049 r 1. Purpose. 1 2. Occupancy And Use Period. 2 3. Continuous Duty to Operate 2 4. Interest Conferred By This Agreement. 2 5. Use Fee. 3 6. Late Fee. 3 7. Returned Check Fee. 3 8. Security Deposit 4 9. Utilities. 5 10. Condition Of The Area. 5 11. Alterations, Additions or Replacements. 6 12. Violations, Liens And Security Interests. 6 13. City Access To Facility. 7 14. Indemnification And Hold Harmless. 8 15. Hazardous Materials. 8 16. Insurance. 9,10 17. No Liability. 11 18. Taxes and Fees. 11 19. Cancellation By Request Of Either Of The Parties Without Cause. 12 20. Termination By City Manager For Cause. 12 21. Notices. 12 22. Advertising. 13 23. Ownership Of Improvements. 14 24. Surrender Of Area. 14 25. Default By Licensee. 15 26. Severability. 15 27. No Assignment Or Transfer. 15 28. Nondiscrimination. 16 29. Affirmative Action. 16 30. Minority/Women Business Utilization. 16 n 02-x.040 31. Waiver Of Jury Trial. 16 32. Non -waiver Of Default. 17 33. Amendments And Modifications. 17 34. Compliance With All Applicable Laws. 17 35. Captions. 17 36. Interpretation. 18 37. Entire Agreement. 18 38. Conflict of Interest 18 39. Compliance with State of Florida, FDOT and Highway Administration 18 Signature Page 19 Exhibit A - "The Area." 20 ii 02-1049 REVOCABLE LICENSE AGREEMENT This Revocable License Agreement (the "Agreement") is made this _ day of 2002, between the City of Miami (the "City") a municipal corporation of the State of Florida and Equity Ventures Realty, Inc., a for profit Florida corporation (the "Licensee") WHEREAS, Publix Supermarkets, Inc. is building a new store adjacent to the property to be leased by Licensee; and WHEREAS, Licensee is the agent for Publix Supermarkets, Inc.; and WHEREAS, Licensee would like to lease the property to use it as a construction staging area for the construction of the Publix store; and WHEREAS, this Revocable License Agreement is not assignable; and WHEREAS, this Agreement is revocable -at -will by the City; and WHEREAS, 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: 1. Purpose. The City is the custodian of real property and improvements thereon at the parking lot under I-95 between 6t' and 7h Streets S.W. and 3rd and 40' Avenues S.W., Miami -Dade County, Florida (the "Property"), which is depicted in Exhibit "A" attached hereto and made a part hereof. The City has determined that the Property (the "Area") is not needed at this time by any of the City's offices or departments. The Licensee wishes to use the Area as a construction staging area for the construction of a Public Supermarket (the "Permitted Use"). The City is willing to assist the Licensee by temporarily authorizing the Licensee to occupy and use the Area for the Permitted Use, under the conditions hereinafter set forth. Any use of the Area not authorized under the Permitted Use must receive the prior written consent of the City Manager, which consent may be withheld or conditioned for any or no reason, including, but not limited to additional financial consideration. Page 1 of 20 02--x.049 2. Occupancy And Use Period. This Agreement shall commence as of the date in which the City Manager executes the Agreement (the "Effective Date") and shall continue on a month-to-month basis 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 either of the parties hereto, subject to the notice provisions of Paragraph 20, "Cancellation By Request Of Either Of The Parties Without Cause;" or (c) Cancellation pursuant to Paragraph 21, "Termination By City Manager For Cause." 3. Continuous Duty to Operate Except where the Area is rendered untenantable by reason of fire or other casualty, Licensee shall at all times during this Agreement, occupy the Area upon the Effective Date and shall thereafter continuously conduct operations in the Area in accordance with the terms of this Agreement. 4. Interest Conferred By This Agreement. Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Area solely for the limited purpose of the Permitted Use 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 Area subject to the terms of this Agreement. No leasehold interest in the Area 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 Area by virtue of this Agreement or its use of the Area hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Area by virtue of any expenditure of funds by the Licensee for improvements, Page 2 of 20 02-1049 construction, repairs, partitions, or alterations to the Area even if such improvements, construction, repairs, partitions, or alterations are authorized by the City. 5. Use Fee. In consideration of this Agreement, Licensee agrees to pay to the City a Monthly Fee (the "Monthly Fee), commencing with the first day of the month following the Effective Date of this Agreement, for the occupancy and use of the Area the amount of FOURTEEN HUNDRED DOLLARS and NO CENTS ($1,400.00), plus State Use Tax, if applicable, which shall be paid in advance and in full on the first day of each month, without notice or demand (the "Monthly Fee"). Payments shall be made payable to the "City of Miami" and shall be mailed to the "City of Miami, Finance Department, 444 S.W. 2nd Avenue, Oh Floor, Miami, Florida 33130", or such other address as may be designated from time to time. In the event the Effective Date does not fall on the first day of the month, the Monthly Fee will be prorated on a daily basis for that month. 6. Late Fee. In the event the City does not receive any installment of the Monthly Use Fee within five days of the date in which it was due, Licensee shall pay to City a late charge in an amount equal to ten percent (10%) of the Monthly Fee. Such late fee shall constitute additional fees due and payable to the City by Licensee upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by the City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 7. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule: Page 3 of 20 02-1049 Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. The Returned Check Fee shall constitute additional fees due and payable to the City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by the City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 8. Security Deposit Simultaneously with the execution of this Agreement, the Licensee shall deposit with the City the sum of FOUR THOUSAND TWO HUNDRED DOLLARS AND NO CENTS ($4,200.00) (the "Security") as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement or in connection with this Agreement. If Licensee is in violation (as provided in "Termination By City Manager For Cause") beyond any applicable notice or cure period, the City may use, apply or retain all or any part of the Security for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by the City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum which the City may expend or be required to expend as a result of Licensee's violation. The use, application or retention of the Security or any portion thereof by the City shall not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. At any time or times when the City has made any such application of all or any part of the Security Deposit, the Licensee shall deposit the sum or sums equal to the amounts so applied by City within ten (10) days of written notice by the City. Provided Licensee is not in violation of this Agreement, the Security or balance thereof, as the case may be, shall be returned to Licensee upon the termination of this Agreement or upon Page 4 of 20 02-1049 any later date after which Licensee has vacated the Area in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Security (or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect to the Security. Licensee shall not be entitled to receive any interest on the Security Deposit. 9. Utilities. Licensee shall pay for all utilities and services, including but not limited to, electricity, water, storm water fees, gas, telephone, garbage and sewage disposal used by Licensee during its occupancy of the Area, as well as all costs for installation of any necessary lines and equipment. Licensee, at its sole cost, shall install all utilities required for its use, install separate utility meters, and shall be billed directly by the applicable utility company for such services. In the event that the City is billed for any utility or service that is a result of Licensee's use of the Area, the Licensee shall reimburse such amount to the City within five (5) calendar days of notification of the City's receipt of said bill. 10. Condition Of The Area. Licensee accepts the Area "as is", in its present condition and state of repair and without any representation by or on behalf of the City, and agrees that the City shall, under no circumstances, be liable for any latent, patent or other defects in the Area. Licensee, at its sole cost, shall maintain the Area in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. Licensee shall be responsible for all repairs to the Area required or caused by Licensee's use of any part thereof. Licensee agrees to make all changes necessary to the Area at Licensee's sole cost and expense in order to comply with all City, County, State and Federal code requirements for Licensee's use or occupancy thereof. 11. Alterations, Additions Or Replacements. Except in the event of an emergency, or the performance of interior painting and minor repairs, Licensee shall not make any repair or alteration required or permitted to be performed by Licensee unless and until Licensee shall have caused plans and specifications therefore to be prepared, at Licensee's sole expense, by an architect or other duly qualified person and shall have Page 5of20 02-1049 obtained City Manager's approval, which approval may be conditioned or withheld for any or no reason whatsoever. The Licensee shall submit to the City proof of funding and/or its financing plans along with the plans and specifications. The Licensee shall be solely responsible for applying and acquiring all necessary permits, including but not limited to, building permits. The Licensee shall be responsible for any and all costs associated with any alterations including, but not limited to, design, construction, installation and permitting costs. All alterations to the Area, whether or not by or at the expense of the Licensee, shall, unless otherwise provided by written agreement of the parties hereto, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify the City of such work. All alterations must be in compliance with all statutes, laws, ordinances and regulations of the State of Florida, Miami -Dade County, the City of Miami and any other agency that may have jurisdiction over the Area as they presently exist and as they may be amended hereafter. 12. Violations, Liens And Security Interests. Licensee, at its sole expense and with due diligence and dispatch, shall secure the cancellation, discharge, or bond off in the manner permitted by law, all notices of violations arising from, or otherwise connected with, Licensee's improvements, use, occupancy, or operations in the Area which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors, subcontractors, and material men for all work and labor done at Licensee's request. Should any lien, claim, or encumbrance be asserted or filed, Licensee shall bond against or discharge the same regardless of validity, within ten (10) calendar days of Licensee's receipt of notice of the filing of said lien, claim, or encumbrance. In the event Licensee fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim and Licensee shall pay the City upon demand any amounts paid out by the City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. Licensee further agrees to hold the City harmless from and to indemnify the City against any and all claims, demands and expenses, including attorney's fees, of any contractor, subcontractor, material man, Page 6 of 20 02--1049 laborer or any other third person with whom Licensee has contracted or otherwise is found liable, in respect to the Area. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of the 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 against any part of the Area or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other agreements involving the Area shall provide for the waiver of any lien rights in the Area and provide that the contracting party agrees to be bound by such provision and include the waiver provision in any sub agreement. 13. City Access To Facility. The City and its authorized representative(s) shall at all times have access to the Area. The City shall have access to and entry into the Area at any time to (a) inspect the Area, (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) calendar 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, (d) to show the Area, to prospective purchasers or tenants, and (e) for other purposes as may be deemed necessary by the City Manager in the furtherance of the City's corporate purpose; provided, however, that the 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 the City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 14. Indemnification and Hold Harmless The Licensee shall indemnify, hold harmless and defend the City from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising during the period of this Agreement, for any personal injury, loss of life or damage to property sustained in Page 7 of 20 02-1049 or on the Area, by reason of or as a result of Licensee's use or operations thereon, and from 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. 15. Hazardous Materials The Licensee shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders, administrative actions and administrative orders ("Hazardous Materials Laws'), including, without limitation, any Hazardous Material Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances, under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The Licensee shall, at its sole cost and expense, procure, maintain in effect, and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Area required for the Licensee's use, or storage of, any Hazardous Materials in or about the Area in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this Agreement, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Area by the Licensee or at the Licensee's direction, to be removed from the Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this Article to prohibit the Licensee from operating in the Area for the uses described in the Section of this Agreement entitled "Purpose". The Licensee may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, Page 8 of 20 02-1049 all applicable governmental requirements. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. 16. 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 Area with such limits as may be reasonably requested by the City from time to time but not less than $1,000,000 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. 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 the improvements, equipment, furniture and all other personal property in and about the Area. The City shall be named as loss payee. D. Worker's Compensation in the form and amounts required by State law. E. The City of Miami, Division of Risk Management, 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, Division of Risk Management, 444 SW 2 Avenue, 901 Floor, Miami, Florida 33130, with copy to the City of Page 9 of 20 02-1049 Miami, Office of Asset Management, 444 SW 2 Avenue, 3`d 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 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 of Florida, with the following qualifications as to management and financial strength: the company should be rated "A" as to management, and no less than class "X" 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. In the event Licensee shall fail to procure and place such insurance, the City may, 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. 17. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, and/or equipment belonging to or rented by Licensee, its officers, agents, employees, invitees or patrons occurring in or about the Area that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Area, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Area, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Area or any Page 10 of 20 02-1049 person whomsoever whether such damage or injury results from conditions arising upon the Area or from other sources. Licensee indemnifies the City its officers, agents and employees from and against any and all such claims 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 privilege to utilize and occupy the Area, 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 Area. 18. Taxes and Fees. Licensee shall pay before any fine, penalty, interest or cost is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Area, or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Area 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 the 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 the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred percent (100%) of the contested tax together with all interest, costs and expenses, including reasonable attorneys' fees, expected to be incurred. 19. Cancellation By Request Of Either Of The Parties Without Cause. Either party may cancel this Agreement at any time by giving thirty- (30) calendar days written notice to the non -canceling party prior to the effective date of the cancellation (the "Notice Period"). Page 11 of 20 0-1049 20. Termination By City Manager For Cause. If, at the sole and complete discretion of the City, Licensee in any manner violates the restrictions and conditions of this Agreement, then, and in the event, after ten (10) calendar 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 without the need for further action by the City. 21. 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. 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 Office of the City Manager 444 S.W. 2 Avenue, 10th Floor Miami, FL 33130 WITH A COPY TO City of Miami Office of Asset Management 444 SW 2 Avenue, Suite 325 Miami, FL 33130 WITH A COPY TO City of Miami City Attorney 444 S.W. 2 Avenue, Suite 945 Miami, FL 33130 LICENSEE Equity Ventures Realty, Inc. Attn: David Kahn 3696 N. Federal Hwy Suite 101 Ft. Lauderdale, FL 33308 Page 12 of 20 02-1019 22. Advertising. Licensee shall not permit any signs, decoration, or advertising matter to be placed upon the exterior of the Area without having first obtained the approval of the Director of Asset Management or his/her designee, which approval may be withheld for any or no reason, at his sole discretion. 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 Area. If any part of the Area 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 Area within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within five (5) 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 Area an appropriate sign indicating the City's having issued this Agreement. 23. Ownership Of Improvements. As of the Effective Date and throughout the Use Period, title to the Area and all improvements thereon shall be vested in City. Furthermore, title to all Alterations made in or to the Area, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. 24. Surrender Of Area. In event of cancellation pursuant to paragraph 20, "Cancellation By Request Of Either Of The Parties Without Cause," or paragraph 21, "Termination By City Manager For Cause," at the expiration of the Notice Period, Licensee shall peacefully surrender the Area broom clean and in good condition and repair together with all alterations, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, Licensee shall Page 13 of 20 02-1049 promptly remove all its personal property and equipment and Licensee shall repair any damage to the Area caused thereby. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay to the City the full cost of such repairs within five (5) calendar days of receipt of an invoice indicating the cost of such required repairs. At the City's option, the City may require Licensee, at Licensee's sole cost and expense, to restore the Area to a condition acceptable to the City. In the event Licensee fails to remove its personal property and equipment from the Area 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 the City sees fit, all at Licensee's sole cost and expense. 25. Default by Licensee. In the event Licensee is in default of the terms of this Agreement the City shall have all remedies available to it at law or in equity. In the event that Licensee fails to peacefully surrender the Area at the expiration of the Notice Period provided in paragraph 20, "Cancellation By Request Of Either Of The Parties Without Cause," or as provided in paragraph 21, "Termination By City Manager For Cause," after delivery of a notice of cancellation of the Agreement by the City (the "City Notice"), then the City shall, in addition to all other remedies, be entitled to collect from the Licensee and Licensee shall pay to the City, a per diem fee of One Thousand Dollars ($1,000.00) for each day that Licensee remains in the Area in violation of this Agreement (the "Per diem Fee"). Acceptance of the Per diem Fee by the City shall, in no event, constitute a waiver of the City's rights under this Agreement and shall not prevent the City from pursuing all other remedies to which is entitled including but not limited to the right to seek injunctive relief to eject Licensee from the Area. 26. Severability. 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 Page 14 of 20 02-1049 unlawful, 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. 27. No Assignment or Transfer. The Licensee may not assign or transfer this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement. 28. Nondiscrimination. Licensee shall not discriminate as to race, color, religion, sex, national origin, age, disability or marital status in connection with its occupancy and/or use of the Area and improvements thereon. 29. Affirmative Action. Licensee shall have in place an Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, the disabled and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, Licensee shall submit a Statement of Assurance indicating that their operation is in compliance with all relevant Civil Rights laws and regulations. 30. 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. The City will make such lists available to the Licensee at the time of the issuance of the Agreement and the City's Office of Minority/Women Business Affairs will routinely provide updates. Page 15 of 20 02-1049 31. Waiver Of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury 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. 32. Nonwaiver of Default Any failure by the City at any time or from time to time to enforce and require the strict keeping and performance of any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City from insisting on the strict keeping and performance of such terms or conditions at any later time. No waiver of any right hereunder shall be effective unless in writing and signed by the City. 33. 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. 34. Compliance with All Applicable Laws. The 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 the Licensee shall comply therewith as the same presently exist and as they may be amended hereafter. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other rules which would require the application of the laws of another jurisdiction Page 16 of 20 02-1049 35. Captions. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 36. Interpretation. This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 37. 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. 38. 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. seq. 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 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 Page 17 of 20 02-1049 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. 39. Compliance with the State of Florida, FDOT and Highway Administration. This Revocable License Agreement is subject to the approval of Florida Department of Transportation ("FDOT") and Federal Highway Administration ("FHWA'). Licensee shall agree to comply with any and all conditions including payment of any fees required by FDOT and/or FHWA. Any payment of fees to FDOT or FHWA shall be additional consideration and shall not result in a reduction in the City's monthly fee. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. ATTEST: Priscilla A. Thompson City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: LICENSOR CITY OF MIAMI, a municipal corporation of the State of Florida Carlos A. Gimenez City Manager APPROVED AS TO FORM AND CORRECTNESS: By: By: Robert Nachlinger Assistant City Manager Risk Management Department Alejandro Vilarello City Attorney Page 18 of 20 02-1049 LICENSEE: WITNESS: ALLAPATTAH COMMUNITY ACTION, INC., DAY CARE CENTER A Nonprofit Florida Corporation. By: Signature Corporate Secretary Print Name CORPORATE SEAL: Lm Signature - Officer Print Name Page 19 of 20 02—.1049 02/07:2002 1T:10 FAS 93i 9512 CRCC OFFICE BLDG SW 6TH STREET ter. ,,..®001 let ryl � ' w.'• ms's p r 0. 0 i1 'i •� } '�`+�r'- � • O fir:,.• ..T.'�i.: — � ' i� .III tit u a�_;All- �7 :i. _� iv; ���5� � ter-. #� � • :x .I •.�' SW 4TH A�� AVE.4:'• `. ry"� O G2' i pA!i�.!�Xij 3 �' *:SW 3RD AVE j ME nk { �S X Mt A Z .K L-2Sip _ I is 7 ,;, 51 14D My ;K•A 0. ' 0 `-ems?► • .O•" •� - C '�{ M • � � ,yid � `►tZb 1 Z ta�1 MAO °'�e44nwA 2 10 4 9 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Honorable Mayor and Members of the City Commission RECOMMENDATION: CA -9 DATE: SEP 12 2,�-02 FILE : SUBJECT: Resolution authorizing the City Manager to execute a Revocable License Agreement with Equity REFERENCES: Ventures Realty, Inc. ENCLOSURES: City Commission Agenda September 26, 2002 The administration recommends that the City Commission adopt the attached Resolution authorizing the City Manager to execute a Revocable License Agreement, in substantially the attached form, between the City of Miami and Equity Ventures Realty, Inc., revocable -at -will, for the temporary use of that certain area under I-95 between S.W. 6u' and 7t' Streets and S.W. 3rd and 4h Avenues, to provide a construction staging area for Publix Supermarkets, Inc., for a period not to exceed six (6) months, with a monthly fee of $1,400.00. This Resolution is subject to the required approvals from the Florida Department of Transportation (FDOT) and the Federal Highway Administration (FHWA). BACKGROUND: On November 6, 1980, the City and FDOT entered into a Memorandum of Agreement ("Memorandum") for a term of ninety-nine (99) years for the leasing of certain FDOT right-of- way. The City caused a parking lot to be constructed on a portion of the leased property which lot is not currently in use. Equity Ventures Realty, Inc. has approached the City to request temporary use of said parking lot as a construction staging area for the new Publix Supermarket located at approximately SW 3rd Avenue and SW 7t' Street. The Memorandum requires the City to obtain prior written approval by both FDOT and FHWA, prior to entering into a sublease of the space and when making any change in the authorized use as provided in the agreement. A written request to FDOT has been submitted in order to obtain the necessary approvals related to the proposed use of the area by Equity Ventures Realty, Inc. FISCAL IMPACT: There is no fmancial impact to the City. CAUD /Pcmew/RLA-Publix Supermarkets 02-1040