HomeMy WebLinkAboutExhibitDRAFT
REVOCABLE LICENSE AGREEMENT
ISSUED BY THE
CITY OF MIAMI
TO
SWIM GYM AQUATICS, INC.
FOR THE OCCUPANCY OF THE PROPERTY
LOCATED AT 3601 RICKENBACKER CAUSEWAY
MIAMI, FLORIDA
TABLE OF CONTENTS
PAGE
l,
Recitals ,..................................................................................................................................
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%.
D«finitiooy..............................................................................................................................
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3'
This Agreement Confers NoExclusive Possession nfthe Property' -----------3
4.
Permitted Uses .......................................................................................................................
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5.
Program O -------------------------------------4
6.
Manner of Property Use .......................................................................................................
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7.
Term ......................................................................................................................................
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0-
Automatic Termination ........................................................................................................
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9.
Cancellation bvRequest of Either ofthe Parties Without Cause ....................................
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10L
This License Agreement is Not Assignable -'..-..--....,.-'----.-..,...--,--.,..,.---,....-,
6
11.
Use Fee ~.~...-'~....-~.-,-.'...-,..~--.-..,,...~---...,-.,,-.-,.-.-.,..-.-~,~.~-~.-'.~.-..6
%%'
Adjustment To Use Fee .----.,,'..--.-,-,-...-~...--,-...'.~^-'^.,~,_..,~^---,.—^^^.-_,.~-`6
13.
Additional Percentage Fee ,..................................................................................................
7
14.
Financials .............................................................................................................................
0
15,
Returned Check Fee' -----------------------------------.
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16.
Late --------------------------------------'lO
17.
S ------------------------.11
18,
Taxes .....................................................................................................................................
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19.
Condition of the Property and Maintenance ....................................................................
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20.
Alterations, Additions or Replacements...........................................................................
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%I.
Meohanirm'Lieom................................................................................................................
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22.
Licenses, Authorizations and Permits ...............................................................................
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23.
No ----------------------------------------.lS
24,
NoClaim toAssets or Rights nfLicensee .........................................................................
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35.
ComplianceWith Laws ---------------------------------..l4
%M'
Addi�mmul Expenses............................................................................................................14
27'
0u ,--------------------------------------l4
Z@.
Insurance .............................................................................................................................
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39'
Safety ....................................................................................................................................
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30,
Americans With Disability Act ..........................................................................................
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31.
City Access To ---------------------------------.l7
32,
Public Records .....................................................................................................................
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33.
Nondiscrimination ------------------------------------..lO
34.
No Discrimination in -------------------------------l8
35,
Conflict mfInterest .------------------------------------.lg
36.
Waiver of Jury Trial; Attorney's Fees ................................................. ...........................
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37.
Notices ---------------.-------.--------------------20
30'
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39.
Waiver .................................................................................... .............................................
2l
40.
Ownership OfImprovements ,...........................................................................................
2l
42. Compliance with Environmental Laws.........
43. Invalidity..........................................................
44. Time of Essence ...............................................
45. No Interpretation Against Draftsmen...........
47. Litigation..........................................................
48. Third Party Beneficiary ...............................
49. No Partnership ................................................
50. Amendments and Modifications ....................
51. Miscellaneous...................................................
52. Entire Agreement ............................................
53. Radon Gas...... ..................................................
54. Authority..........................................................
Exhibit A: Property
Exhibit B: Manner of Property Use
Attachment A
Attachment B
Attachment C
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....... ............................................... I........ 23
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DRAFT
REVOCABLE LICENSE AGREEMENT
This revocable license agreement ("Agreement") is entered this day of ,
2009, (but is effective as of the Effective Date as hereinafter defined) by and between the City of
Miami, a municipal corporation of the State of Florida (the "City"), and Swim Gym Aquatics,
Inc. ("Licensee"), a for profit corporation under the laws of the State of Florida.
RECITALS
WHEREAS, the City and Licensee desire and intend to enter into a revocable license
agreement; 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; and
WHEREAS, this Agreement permits only certain, enumerated, specific and listed
permitted uses and does not permit anything further; and
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the
parties hereby agree as follows:
1. Recitals.
The foregoing recitals are hereby incorporated and made a part of this Agreement.
2. Definitions.
a) "Additional Percentage Fee" is 12% of Gross Revenues from Licensee's operations,
which includes those operations by Program Operators that enter into agreements
with Licensee to provide the activities outlined in Section 4 of this Agreement.
b) "City Manager" is the City Manager for the City of Miami.
c) "City -sponsored Event" shall mean an event sponsored by the City on the Property.
d) "City's Use Fee" is the monthly fee that Licensee pays to the City, as the case may
be, for the use of the Property.
e) "Director" shall mean the Director of the Department of Parks and Recreation for the
City of Miami.
f) "Effective Date" shall be October 1, 2008.
g) "Environmental Laws" means all applicable requirements of federal, state and local
environmental, public health and safety laws, regulations, orders, permits, licenses,
approvals, ordinances and directives, including but not limited to, all applicable
requirements of; the Clean Air Act; the Clean Water Act; the Resource Conservation
and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of
1984; the Safe Drinking Water Act; the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfand Amendments and
Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic
Substances Control Act; the Pollutant Discharge Prevention and Control Act; the
Water Resources Restoration and Preservation Act; the Florida Air and Water
Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida
Environmental Reorganization Act of 1975.
h) "Permitted Uses" means Licensee shall occupy and use the Property primarily for
water recreational and educational opportunities as more particularly described in
Section 4.
i) "Program Operators" shall be other entities that provide activities at the Property
pursuant to an agreement with Licensee to provide activities and services as permitted
pursuant to Section 4 entitled "Permitted Uses". The City shall not be included in the
definition of "Program Operator".
j) "Property" shall mean 149,700 square feet or 3.44 acres of City -owned real property
including a 1,680 square foot Deluxe Modular, located at 3601 Rickenbacker
Causeway, Miami, Florida, as more particularly shown and described in the survey
2
found in Exhibit "A" and Exhibit "B" attached hereto and made a part hereof.
k) "Special Event" shall mean activities at the Property which exceed the scope of the
regular program activities conducted at the Property and outlined in Section 4 and
Exhibit B of this Agreement.
3. This Agreement Confers No Exclusive Possession of the Property.
This Agreement confers no exclusive possession of the Property. The Licensee cannot
exclude the City from the Property.
This Agreement solely authorizes Licensee to the temporary use of the Property for the
limited purposes set forth herein and for no other purpose. The parties hereby agree that the
provisions of this Agreement do not constitute a lease. 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 on
the Property and to use the Property, subject to the terms of this Agreement. The City retains
dominion, possession and control of the Property. Therefore, no lease interest in the Property is
conferred upon Licensee under the provisions hereof. 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 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.
4. Permitted Uses.
Subject to existing zoning and other governmental restrictions and the issuance of this
Agreement, this Agreement authorizes the Licensee to occupy and use the Property primarily for
public water recreational and educational activities, which activities may include rowing,
kayaking, paddling, group and individual instruction, lectures, clinics, classes, camps, together
with associated ancillary uses, and for no other purpose whatsoever (the "Permitted Use").
Receptions, conferences, meetings, socials, and any other Special Events being held at or around
the Property will be permitted via parks use permit only. The use of jet skis and motorized
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vessels is strictly prohibited (The only exception is when a motorized vehicle (non -jet ski) is
used as safety boat to accompany kayaks, rowing sculls, or sailboats that are part of these
Permitted Uses). No other uses except those provided for in this Section are allowed. Youth
(non -adult) residents of the City of Miami shall not be required to obtain a membership in order
to participate in the rowing program and other programs.
Licensee shall ensure that the Property and all of Licensee's activities thereon, or
resulting from, in connection with or relating to Licensee's use of the Property, shall be available
to all segments of the community including the physically disabled and financially
disadvantaged. Licensee shall operate, manage, supervise and administer activities during its use
of the Property as an independent contractor and not as an employee of the City. Licensee may
request written consent from the Director to use the Property for any other use, but shall not be
authorized to use the Property for that use until Licensee has received the written consent of the
Director, which consent may be conditioned or withheld in the Director's sole discretion.
The sale, distribution and/or consumption of alcoholic beverages at the Property is
prohibited unless specifically authorized in writing in advance of the event by the Director in
connection with a Special Event and provided that Licensee obtains all required permits,
complies with all laws and codes, and provides insurance coverage for liquor liability in a form
acceptable to the City and in an amount not less than $2,000,000 per occurrence.
Licensee shall be authorized to operate concession sales subject to application and
approval by the Director whose approval may be conditioned or withheld in his sole discretion;
Concession sales may only be authorized during the specific days and hours the licensee operates
its programs.
5. Program Operators.
Licensee shall be solely responsible for all of its activities during its use at the Property.
The Licensee shall be allowed to enter into professional services agreements with Program
Operators that wish to provide the activities set forth in Section 4, subject to obtaining the prior
written approval of the Director, which approval may be conditioned or withheld in his sole
discretion. Licensee's agreements with Program Operators shall include a provision that
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Program Operators shall comply with the terms and conditions of this Agreement including, but
not limited to, the requirement to pay the Percentage Fees in accordance with Section 12 herein
and obtain required insurance in accordance with Section 27.
6. Manner of Propertv Use.
Licensee's use of the Property is nonexclusive and Licensee acknowledges that other
users may use the Property and shall not conflict with other Property users. Licensee
acknowledges and agrees to abide by the terms and obligations as set forth in Exhibit "B"
attached hereto and made a part hereof, related to the services to be provided, manner of
operation, use areas, and maintenance and utility obligations.
7. Term.
This Agreement is revocable -at -will by the City Manager. Unless this Agreement is
revoked or terminated as provided in this Agreement, this Agreement shall commence upon the
Effective Date and shall expire automatically September 30, 2009. Provided Licensee is not in
violation of the Agreement, Licensee is hereby granted the option to extend this Agreement for
three (3) additional one-year (1) renewal option periods, upon expiration of the initial License
term period under the same terms and conditions of the initial Agreement term upon the mutual
consent of both parties. Licensee shall request such renewal in writing no later than ninety (90)
days prior to the expiration. The City Manager is hereby authorized to exercise such renewal,
which may be at his sole discretion and may be subject to additional consideration.
8. Automatic Termination.
Licensee and its Program Operators, agree to abide by each and every term and condition
of this Agreement. If Licensee violates the terms, restrictions or conditions of this Agreement,
then the City may give it ten (10) days written notice within which to cease such violation or
correct such deficiencies. Upon Licensee's failure to do so, this Agreement shall be
automatically canceled without the need for further action by the City. Notwithstanding this
provision or any other provision in this Agreement, this License extended to the Licensee is
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revocable -at -will by the City, through its City Manager, without the consent of the Licensee.
9. Cancellation by Request of Either of the Parties Without Cause.
Either party may cancel this Agreement at any time with thirty (30) days prior written
notice to the non -cancelling party.
10. This License Agreement is Not Assignable.
Licensee shall not sell, assign this Agreement, or any part thereof to any other party. The
License granted by this Agreement is personal to the Licensee. Any assignment sale or transfer
of this Agreement contrary to the foregoing provision, whether voluntary or involuntary, shall be
void and shall confer no right upon such assignee, shall constitute a violation under this
Agreement, and shall result in an immediate forfeiture of the rights of Licensee hereunder.
11. Use Fee.
Commencing on the Effective Date of this Agreement, and on the first day of each month
thereafter during the term of the Agreement, Licensee shall pay to the City a monthly Use Fee of
Four Hundred Dollars ($400.00), plus State of Florida State Use Tax, if applicable, for the
license to use the City's Property. The Use Fee shall be due each month without notice or
demand. Payments shall be made payable to "City of Miami" and shall be mailed to 444 S.W.
2°d Avenue, 6th Floor, Finance Department, Attention: Treasury Management/Receipts, Miami,
Florida 33130, or such other address as may be designated from time to time from the City
Manager. Licensee shall be responsible for any cost associated with its programs operated on the
Property, including but not limited to, security, equipment, and insurance during its operating
hours.
12. Adiustment To Use Fee.
Commencing twelve months from the Effective Date, or on the first day of the
following month if the Effective Date is not on the first of the month, and every twelve months
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thereafter (the "Anniversary Date(s)"), Licensee agrees that the Monthly Use Fee shall each be
increased by three percent (3%) of the Monthly Use Fee and Guarantee Deposit respectively, in
effect for the immediately preceding Agreement Year. On each Anniversary Date the Licensee
shall begin to remit payment to the City for the increased amount. Nothing in this paragraph
shall be construed to grant Licensee the right to use the Area or Property for a term greater than
that defined in Section 7 herein.
13. Additional Percentage Fee.
In addition to the payment of the Use Fee as provided for in Section 11, commencing on
the Effective Date, Licensee and each Program Operator, if applicable, shall pay monthly to the
City a fee in the amount of twelve percent (12%) of their respective Gross Revenues derived
from their respective use of the Property, plus State of Florida Use taxes, if applicable
(hereinafter "Additional Percentage Fee"). On or before the thirtieth (30th) day following the
end of each month, Licensee shall remit its and the Program Operator's Additional Percentage
Fees to the City.
For purposes of this Agreement, the term "Gross Revenues" shall include the following
revenue received by Licensee:
a) all revenue from services, program fees and membership dues;
b) all revenue derived from advertising and sponsorships conducted on the Property;
C) all revenue from concession sales;
d) all other receipts whatsoever of all business conducted in or from the Property;
e) all revenue from sales and services generated on or from the Property;
f) all revenue received by Licensee or any business entity or venture which has
involvement of Licensee's principals, in connection with the use of the Property,
any facility thereon, or any portion thereof for any period of time, including
without limitation, special events, regattas, or tournaments, held on the Property,
or at Marine Stadium;
g) all grants, subsidies, rebates, credits or similar benefits received from any federal,
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state, regional or local body, agency, authority, department or organization which
revenues are unrestricted or are to be used for general operating expenses.
h) all donations and contributions received which revenues are unrestricted or are to
be used for general operating expenses.
No deduction shall be allowed for direct or indirect discounts, unless generally offered to
employees or the public on a uniform basis.
Gross Revenues shall not include the following:
a) any amount of any sales, use or gross sales tax imposed by any federal, state or
governmental authority directly on sales and collected from customers, provided
that the amount is added to the selling price therein and paid by the Licensee to
such governmental authority;
b) collection of insurance proceeds;
C) monies collected for events that are done for charities wherein the total amount
collected is paid to the charitable sponsor or not-for-profit organizations;
d) all gratuities paid to employees;
e) any grants, subsidies, credits or similar benefits received from any federal, state,
regional or local body, agency, authority, department or organization which
revenues are restricted or for capital expenditures to the Property;
f) any donations or contributions which revenues are restricted for capital
expenditures, as approved by the City, to the Property;
Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized
in the period the service was provided or sale took place. Payments received in advance are
deferred and are recognized as revenue in the period the service is rendered or sale takes place.
Grants shall be recorded as income during the period designated by the grants or when the
Licensee has incurred expenditures in compliance with the restrictions of the grantor. If a sale is
by credit card no deduction shall be allowed for any commission associated with such sale.
Gross Revenues shall be reduced by the amount of any refund made upon any sale in or
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from the Property, provided said amounts had been previously included in "Gross Revenue," not
to exceed the sum so previously included, where the merchandise sold is thereafter returned by
the purchaser and accepted by the Licensee, and if such refund is in the form of a credit to
customer, such credit shall be included in Gross Revenues when used.
14. Financials.
Within ninety (90) days after the end of its fiscal year, Licensee shall deliver or cause to
be delivered to the City of Miami's Director, Department of Public Facilities, whose address is
444 S.W. 2nd Avenue, 3rd Floor, Miami, FL 33130, a audited financial statement for the
Licensee's and Program Operators' fiscal year which includes the Licensee's and the Program
Operator's gross revenues. Such financial statement shall be prepared by Licensee's accountant,
employed respectively at Licensee's and the Program Operator's sole cost and expense. In the
event Licensee or a Program Operator is unable to timely submit the audited financial statement
and provided Licensee and the Program Operator has commenced and diligently pursued the
completion of the audit, Licensee and the Program Operator may request from the Director a
thirty (30) day extension to complete the audit which request shall not be unreasonably denied.
Said accountant shall attest that such statement is prepared in accordance with generally accepted
accounting principles and practices and represents the Gross Revenues, other revenues, if any,
for the period indicated therein.
Notwithstanding the above and during the Term described in Section 7 of this Agreement
and for a period expiring three (3) years after the expiration of the Term, at its option, the City
may, at its sole cost and expense, audit Licensee and the Program Operator's business affairs,
records, files, sales slips and sales tax records in connection with Licensee and the Program
Operator's sales on, from or related to the Property for the period covered by any financial
statement, report or record furnished to the City.
Licensee and its Program Operators shall allow the City or auditors of the City to inspect
all or any part of the source documents and records for the aforesaid monthly reports. Said
inspection shall be conducted at the sole discretion of the City. Records shall be available
Monday through Friday, inclusive, between the hours of 8:00 AM and 5:00 PM at the Licensee's
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address provided in Section 36 of this Agreement. Copies requested by the City shall be
furnished to the City at no cost.
15. Returned Check Fee.
In the event any check is returned to the City as uncollectible, the Licensee shall pay to
the City a returned check fee (the "Returned Check Fee") based on the following schedule:
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.
Such 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
such Returned Check Fee by the City shall not, 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.
16. Late Payments.
Licensee hereby acknowledges that late payment by the Licensee to the City of the use
fee, percentage fee and other sums due hereunder will cause the City to incur costs not
contemplated by this Agreement, the exact amount of which will be extremely difficult to
ascertain. Accordingly, if any installment of the use fee, percentage fee or any other sum due
from Licensee shall not be received by the City within fifteen (15) days after the date on which
such sum is due, Licensee shall pay to the City a late charge equal to 5% of such overdue
amount. The parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs the City will incur by reason of late payment by Licensee. Acceptance of
such late charge by the City shall not constitute a waiver of the Licensee's violation with
respect to such overdue amount, nor prevent the City from exercising any of its other rights and
remedies granted hereunder or at law or in equity.
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Any amount not paid to the City within fifteen (15) days after the date on which such
amount is due shall bear interest at the rate of 12% per annum from its due date. Payment of
such interest shall not excuse or cure any violation by Licensee under this Agreement.
17. Security Deposit (intentionally deleted)
18. Taxes.
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 [collectively
Assessments], its proportionate share of use of the Property and/or against 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 an
Assessment, Licensee shall immediately notify the City of its intention to appeal said
Assessment and shall furnish and keep in effect a surety bond of a responsible and substantial
surety that is reasonably acceptable to the City or other security reasonably satisfactory to the
City in an amount sufficient to pay one hundred percent of the contested Assessment with all
interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in
connection with it. Licensee agrees to pay such Assessments either in lump sum or on an
installment plan.
Failure of the Licensee to pay any Assessment or any installment payment thereof shall
constitute a violation under this Agreement.
19. Condition of the Property and Maintenance.
Licensee accepts the Property "as is", in its present condition and state of repair condition
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 Property. Licensee shall
provide all maintenance to the Property in accordance with Exhibit `B", except roof and
structural portions of the building.
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20. Alterations, Additions or Replacements.
Except in the event of an emergency, Licensee shall not make any repair without first
receiving the written approval of the City Manager or his/her designee, 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 the 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 or his/her designee.
In the event of an emergency, Licensee shall reasonably proceed to perform such repair
work and shall immediately notify the City of such work.
21. Mechanics' Liens.
The Licensee shall not knowingly suffer or permit any mechanics' liens to be filed
against the title to the Property by reason of work, labor, services or materials supplied to the
Licensee or anyone having a right to possession of the Property as a result of an agreement with
or without the consent of the Licensee. Nothing in this Agreement shall be construed as
constituting the consent or request of the City, expressed or implied, by inference or otherwise,
to any contractor, subcontractor, laborer or materialman for the performance of any labor or the
furnishing of any materials, for any specific work on the Property nor as giving the Licensee
the right, power or the City to contract for or permit the rendering of any services or the
furnishing of any materials that would give rise to the filing of any mechanics' liens against the
City 's interest in the Property if any mechanics' lien shall at any time be filed against the
Property, the Licensee shall cause it to be discharged of record within thirty (30) days after the
date that it has notice of its filing. Licensee shall not be required to pay or discharge any
mechanics' lien within the thirty (30) day period, so long as Licensee shall in good faith
proceed to contest the lien by appropriate proceedings. It shall furnish reasonably satisfactory
evidence that funds are or will be available to pay the amount of the contested lien claim with
all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in
connection with it. If Licensee does not 1) cause a mechanics' lien to be discharged of record
within thirty (30) days after the date Licensee has notice of the filing of a lien or 2) Licensee
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does not in good faith proceed to contest the lien by appropriate proceedings within the thirty
(30) day period, then Licensee shall be in violation of the Agreement.
22. Licenses, Authorizations and Permits.
Licensee shall obtain, or cause to be obtained, and maintain in full force and effect
throughout the term of this Agreement, at its sole expense, all licenses, authorizations and
permits that are necessary for Licensee to conduct its public water recreational and educational
activities.
Licensee shall be responsible for paying the cost of said applications and obtaining said
licenses, authorizations and permits.
23. No Liability.
In no event shall the City be liable or responsible for injury, loss or damage to the
property, improvements, fixtures and/or equipment belonging to or rented by Licensee, the
Program Operators, their officers, agents, employees, invitees or patrons occurring in or about
the Property 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 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 any user of the
facilities or occupants of the Property or any person whomsoever whether such damage or injury
results from conditions arising upon the Property or upon other portions of the Property 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 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
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employees, from any and all claims for injury, death or property damage resulting from
Licensee's use of the Property.
24. No Claim to Assets or Rizhts of Licensee.
By entering into this Agreement, none of the parties are granted any assets, rights, titles
or interest to the other's assets, rights; title or interests, except as otherwise set forth in this
Agreement.
25. Compliance With Laws.
Licensee and/or its authorized agents agree to comply with all applicable laws, codes
(including, but not limited to, the Florida Building Code as it may be amended), ordinances and
regulations enacted or promulgated by federal, state, county, and city government including the
provisions of the Zoning Ordinance, Charter and Code of the City. Licensee and/or its
authorized agents shall also comply with reasonable directives of the City Manager.
26. Additional Expenses.
Under no circumstances will the City be liable for any costs or expenses incurred by
Licensee under this Agreement or as a result of its programs or related activities beyond those
that are specifically set forth in this Agreement.
27. Indemnification.
Licensee shall indemnify, defend and hold harmless the City and its officials, employees
and agents (collectively referred to as "Indemnitees") and each of them from and against all loss,
costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities
(collectively referred to as "Liabilities") by reason of any injury to or death of any person or
damage to or destruction or loss of any property arising out of, resulting from, or in connection
with (i) the performance or non-performance of the services contemplated by this Agreement
which is or is alleged to be directly or indirectly caused, in whole or in part, by any act,
omission, violation or negligence (whether active or passive) of Licensee or its employees,
14
agents or subcontractors (collectively referred to as "Licensee"), regardless of whether it is, or is
alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act,
omission, violation or negligence (whether active or passive) of the Indemnitees, or any of them
or (ii) the failure of the Licensee to comply with any of the paragraphs herein or the failure of
the Licensee to conform to statutes, ordinances, or other regulations or requirements of any
governmental authority, federal or state, in connection with the performance of this Agreement.
Licensee expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from
and against all liabilities which may be asserted by an employee or former employee of Licensee,
or any of its subcontractors, as provided above, for which the Licensee's liability to such
employee or former employee would otherwise be limited to payments under state Workers'
Compensation or similar laws.
28. 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 Commercial General Liability
coverage form, including premises operations, personal injury, products, and contractual liability
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 $1,000,000 combined single limit per
occurrence, $2,000,000 aggregate 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. Worker's Compensation in the form and amounts required by State law.
D. Combined Participant Medical Expense Payments ($25,000) and General
15
Liability (S 1,000,000).
E. Professional Liability Coverage with limits of at least $1,000,000 per claim,
51,000,000 aggregate.
F. "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 improvements, fixtures,
equipment, furniture and all other personal property in and about the Property.
G. The City's Department 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.
H. 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, 444 SW 2 Avenue, 91h Floor, Miami, Florida 33130, with copy to City of Miami,
Department of Public Facilities, 444 SW 2 Avenue, 3rd Floor, Miami, Florida 33130, or such
other address that may be designated from time to time.
I. A current evidence and policy of insurance evidencing the aforesaid required
insurance coverage shall be supplied to Department of Public Facilities 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 Licensee should be
rated "A" as to management, and no less than class 'T" as to financial strength, in accordance
with the latest edition of Best's Key Rating Guide, or the Licensee 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 having less coverage than required does not constitute a waiver of
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
16
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.
29. Safetv.
Licensee will allow City inspectors, agents or representatives the ability to monitor its
compliance with safety precautions as required by federal, state or local laws, rules, regulations
and ordinances. By performing these inspections the City, its agents, or representatives are not
assuming any liability by virtue of these laws, rules, regulations and ordinances. Licensee shall
have no recourse against the City, its agents, or representatives from the occurrence, non-
occurrence or result of such inspection(s). Upon issuance of a notice to proceed, the Licensee
shall contact the Risk Management Department at (305) 416-1700 to schedule the inspection(s).
30. Americans With Disability Act.
Licensee shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the
City including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability)
and all applicable regulations, guidelines and standards. Additionally, Licensee shall take
affirmative steps to ensure nondiscrimination in employment of disabled persons.
31. City Access To Proper
The City and its authorized representative(s) shall have at all times access to the Property.
The City will maintain a complete set of keys to the Property. Licensee, at its sole cost and
expense, may duplicate or change key locks to the Property but not until first receiving written
approval from the Director for such work. In the event Licensee changes key locks as approved
by the Director, Licensee, at its sole cost and expense, must also provide to the City a copy or
copies of said keys, if more than one copy is required.
17
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, (d) to show the
Property, to prospective purchasers, Licensees or others, 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 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.
32. Public Records.
Licensee understands that the public shall have access, at all reasonable times, to City
contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access
by the City and the public to all documents subject to disclosure under applicable law.
33. 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 Property on account of race, color, sex, religion, age, handicap, marital
status or national origin.
34. 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
18
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.
35. Conflict of Interest.
Licensee is aware of the conflict of interest laws of the City (Miami City Code Chapter 2,
Article V), Miami -Dade County, Florida (Miami -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 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.
36. Waiver of Jury Trial; Attorney's Fees.
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. In the event
of any litigation between the parties arising out of this Agreement, each party shall bear their
own attorney's fees.
37. Notices.
All notices or other communications, which shall or may be given pursuant to this
Agreement shall be in writing and shall be delivered by hand, telecopy, or registered mail
addressed to the other party at the address indicated herein. Such notice shall be deemed given
on the day on which hand delivered; faxed or, if by mail, on the fifth day after being posted or
the date of actual receipt, whichever is earlier.
If to City of Miami: City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
With a copy to: City Attorney
City of Miami
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Department of Parks & Recreation
City of Miami
444 SW 2nd Avenue, 8d' Floor
Miami, Florida 33130
Department of Public Facilities
City of Miami
444 SW 2nd Avenue, 3`d Floor
Miami, Florida 33130
If to Licensee: Swim Gym Aquatics, Inc.
Attention: Alan Strauss, President
9800 Southwest 71" Avenue
Miami, Florida 33156
38. 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 or
20
his/her designee, which approval may be withheld for any or no reason, at his 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 the City directing the required repairs, the City shall cause the Property 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 Property an appropriate sign indicating City's having issued this Agreement.
39. Waiver.
Any waiver by either party or any breach by either party of any one or more of the
covenants, conditions or provisions of this Agreement shall not be construed to be a waiver of
any subsequent or other breach of the same or any covenant, condition or provision of this
Agreement, nor shall any failure on the part of the City to require or exact full and complete
compliance by Licensee with any of the covenants, conditions or provisions of this Agreement
be construed as in any manner changing the terms hereof to prevent the City from enforcing in
full the provisions hereto, nor shall the terms of this Agreement be changed or altered in any
manner whatsoever other than by written agreement of the City and Licensee.
40. Ownership Of Improvements.
As of the Effective Date and throughout the Term of this Agreement and any extension
thereof, Licensee agrees that all buildings and improvements constructed by Licensee on the
21
Property shall not be erected without prior approval of the City Manager and upon completion
thereon shall be vested in the City, Furthermore, title to all Alterations made in or to the
Property, 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 Property.
41. Surrender Of Properrhr.
Upon the expiration of this Agreement or in the event of cancellation pursuant to
revocation, "Cancellation By Request Of Either of the Parties Without Cause" or "Automatic
Termination", 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 together with all alterations,
fixtures, installation, additions and improvements which may have been made in or attached on
or to the Property. Upon surrender, Licensee shall promptly remove all its personal property,
trade fixtures and equipment and Licensee shall repair any damage to the Property caused
thereby. Should Licensee fail to repair any damage caused to the Property within ten (10) days
after receipt of written notice from the City directing the required repairs, the City shall cause the
Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the
full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such
required repairs. At the City's option, the City may require Licensee to restore the Property so
that it shall be as it was on the Effective Date.
In the event Licensee fails to remove 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 the City sees fit, all at Licensee's
sole cost and expense.
42. Compliance with Environmental Laws.
Licensee represents and warrants that during the term of this Agreement, it will not use or
employ the property, or any other City -owned property, to handle, transport, store or dispose of
22
any hazardous waste or substances and that it will not conduct any activity at the Property or
other City -owned property in violation of any applicable Environmental Laws.
43. Invaliditv.
In the event that any non -material provision of this Agreement shall be held to be invalid
for any reason, such invalidity shall not affect the remaining portions of this Agreement and the
same shall remain in full force and effect.
44. Time of Essence.
It is expressly agreed by the parties hereto that time is of the essence with respect to this
Agreement. If the final day of any period falls on a weekend or legal holiday, then the final day
of said period or the date of performance shall be extended to the next business day thereafter.
45. No Interpretation Against Draftsmen.
The parties agree that no provision of this Agreement shall be construed against any
particular party and each party shall be deemed to have drafted this Agreement.
46. Further Acts.
In addition to the acts and deeds recited herein and contemplated to be performed,
executed and/or delivered by the parties, the parties each agree to perform, execute and/or deliver
or cause to be performed, executed and/or delivered any and all such further acts, deeds and
assurances as may be necessary to consummate the transactions contemplated hereby.
47. Litigation.
Any dispute herein shall be resolved in the courts of Miami -Dade County, Florida. The
parties shall attempt to mediate any dispute without litigation. However, this is not intended to
establish mediation as a condition precedent before pursuing specific performance, equitable or
injunctive relief.
23
48. Third Partv Beneficiarv.
This Agreement is solely for the benefit of the parties hereto and no third party shall be
entitled to claim or enforce any rights hereunder.
49. No Partnership.
Nothing contained herein shall make, or be construed to make any party a principal,
agent, partner or joint venturer of the other.
50. Amendments and Modifications.
No amendments or modifications to this Agreement shall be binding on either party
unless in writing, approved as to form and correctness by the City Attorney, and signed by both
parties. The City Manager is authorized to amend or modify this Agreement as needed.
51. Miscellaneous.
Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
52. Entire Agreement.
This Agreement represents the entire understanding between the parties hereto as to the
subject matter hereof, and supersedes all prior written oral negotiations, representations,
warranties, statements or agreements between the parties hereto as to the same. There are no
promises, terms and conditions, or obligations other than those contained herein, and no party
has relied upon the statements or promises of the representatives of any party hereto.
53. Radon Gas.
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from your county
24
public health unit.
54. Authority.
Each of the parties hereto acknowledges it is duly authorized to enter into this Agreement
and that the signatories below are duly authorized to execute this Agreement in their respective
behalf.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers and hereunto duly authorized as of the date
first above written.
ATTEST:
By:
Signature
Print Name
By:
Signature
Print Name
ATTEST:
Priscilla A. Thompson
City Clerk
APPROVED AS TO INSURANCE
REQUIREMENTS:
LeeAnn Brehm, Director
Department of Risk Management
26
LICENSEE:
Swim G}ern Aquatics, Inc. a for profit
corporation under the laws of the State of
Florida
By:
Signature
Print Name
(Corporate Seal)
CITY OF MIAMI,
a municipal corporation of the
State of Florida
Pedro G. Hernandez
City Manager
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
Julie O. Bra
City Attorney
Exhibit A
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77
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Exhibit B
Manner of Property Use
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EXHIBIT B
l�ZA'�'\ER OF PROPERTY USE
1. Definitions
A. "Department" shall mean the City of Miami Department of Parks and
Recreation.
B. "Property" shall mean approximately 149,700 square feet or 3.44 acres
including a 1,680 square feet of City of Miami Department of Parks
Recreation Deluxe Modular trailer to be shared by Licensees for offices
and services in the area depicted in Attachment C.
C. "Licensee' shall mean the. followinz entities:
Miami Overseas Chinese Association ("Dragonboats")
Miami RmNing and Watersports Center; Inc. ("MRWC")
Swim Gym Aquatics, Inc. ("Swim Gym")
C. The "Term Year," from October 1 to the following September 30 of any
given year the Revocable License Agreement is effective.
2. Sendces and Use Areas
A. Basic Services. Licensee hereby acknowledges that the following are the
Basic Services provided by each Licensee currently authorized to operate at the
Property and their hours of use:
i. Dragonboats
■ Provides dragonboat paddling activities weekends from
approximately 9:00 AM - 2:00 PM and Tuesdays, Wednesdays and
Thursdays from 5:00 PM — 8:00 PM.
ii. MRWC
■ Provides masters and similar rowing, kayaking and
paddling activities at this facility weekdays from approximately
5:00 AM —10:00 AM and from approximately 4:30 PM — 7:30 PM
and on weekends from 6:00 AM to 11:00 AM.
■ Provides outrigger canoe paddling outside the basin
Wednesdays from approximately 5:30 PM — 7:30 PM and
weekends from 8:00 AM —12:00 PM.
2/9/2009 1
■ Provides youth ro«-ing including use of weight room and
routing (ergonomic) machines during the months of September to
June on «-eekdays from approximately 3:30 PM — 7:30 PM and on
weekends from 8:00 AM — 12:00 PM.
■ Provides youth ro«ina for the months of June. July and
August on «7eekdays from approximately 8:00 AM — 12:00 PM.
Swim Gym, MRNVC and the Department shall revie«- this
program's operations every two weeks to ensure they remain
compatible and that strict supervision is provided as set forth
herein. The Department shall have the right to make programmatic
changes in the event Swim Gym's summer camp and MR - C
Youth program develop operational conflicts «-hick could include,
but is not limited to; restructuring hours of operation, requiring
additional supervision or canceling the program.
iii. Swim Gym
■ Provides a summer camp program including aftercare
during the months of May, June, July, and August
weekdays from approximately 8:00 AM — 5:30 PM.
■ Provides adult swimming classes and Learn to Swim
program throughout the Term Year.
■ Provides sailing, kayaking and or other non -motorized
watercraft activities, including cable wakeboarding, so long
as said activities are coordinated with MRWC and
dragonboat activities and do not interfere with their rowing
activities.
Any programming conflicts resulting from the Basic Services provided above
shall be resolved by the Director in his or her sole discretion.
B. Additional Services
Each Licensee may from time to time utilize the Property for "Additional
Services" upon the expressed written approval of the Department. An Additional
Service is hereby defined as a program or service that is consistent with the
Permitted Uses more fully set forth in the respective Licensee's Revocable
License Agreement with the City and which Additional Service is offered on a
routine or continuing basis, i.e. not a one-time event or Special Event.
C. Special Events
The Department shall have the sole authority, discretion and responsibility
for authorizing Special Events and the related permit at the Property, the
collection of fees in connection therewith, and establishing permittee liability
insurance requirements to utilize the Property for a Special Event. Any inquiries
made from outside parties to the Licensees for a Special Event should be referred
to the Department. In the event the City issues a permit to a non -Licensee
2/9/2009 2
permittee, the Cit; shall have the sole responsibility to clean or caused to be
cleaned the Property and repair any damages resulting from the Special Event.
For purposes of this Agreement, the term "Special Events" as it relates to
Licensees shall mean activities at the Property, which exceed the scope of the
regular program activities, especially, but not in ani way limited to events which
involve a charge to the membership or public. If a Licensee elects to have a
Special Event, it shall, at its sole cost and expense, obtain the prior «•aitten
approval of the Department, obtain all applicable permits and pay any and all
other costs associated with the issuance of any permits including; but not limited
to, the cost of additional insurance, off-duty police, fire -rescue services and
cleanup related to the Special Event.
D. Use Areas
i. Each Licensee shall have the nonexclusive right (in common with
other occupants of the Property) to use the common areas of the Property,
for the purposes intended, subject to such rules and regulations as City
may establish from time to time.
ii. The use areas set forth below are for the purpose of prioritizing the
use of space at the Property. Notwithstanding, any Licensee shall have the
right to use other portions of the Property not specifically identified below
subject to its availability and with the Department's authorization and for
the limited purpose of providing its Permitted Use as defined in its
respective License Agreement with the City. Licensees shall keep these
common areas clear of clutter.
. (a) Dragonboats shall have the right to store four (4)
dragonboats on the ground level of the boathouse in the area depicted in
Attachment A.
(b) Dragonboats shall have the right to exterior storage for
additional dragonboats in location depicted in Attachment B, subject to
maintaining a through -fare to the water in the boatyard area.
(c) Dragonboats shall have the right to additional exterior
storage in such other locations that may be available as determined by the
Department, in its sole discretion.
(d) Dragonboats shall have the right to use other areas of the
Property subject to availability and with the Department's authorization.
(e) MRWC shall have the right to store its ro-,Adng and paddling
vessels within the remainder of the boathouse. -
(f) MRWC shall have the right to exterior storage of vessels in
the area depicted in Attachment B, subject to maintaining a through -fare to
the water in the boatyard area -
(g) MRWC shall have the right to use the maintenance/repair
area as depicted in Attachment B.
2/9/2009 3
(h) MMVC shall have the right to locate one storage trailer in
the area depicted in Attachment B and conditioned on the trailer havins all
its required permits.
(i) AIRWC shall ensure that it launches its vessels during the
months of May, June, July, and August at times not in conflict with Swim
Gym whoN,,7111 be launching safety and chase vessels and rotating activities
on the hour and each half hour. In the event that both licensees are
launching vessels at the same time (as for instance in the mornings during
summer rowing camp sessions), the two groups shall share the launch
space cooperatively, making room for each other's uses.
0) MRWC shall have the right to use the weight /ergometer
room during the Term, provided that during the months of May through
August Swim Gym shall have use of said room when not in use by
MRWC in its summer rowing camp.
(k) MRWC shall have the right to utilize the Property to
conduct its annual Miami International Regatta; the Sunshine State
Games, the Cystic Fibrosis Kayak Challenge, Miami Paddlefest, the South
Florida Rowing Championships, and their Blue Blazer Night, as listed
with the City of Miami Special Events Committee which shall include set-
up and dismantling time on the day before and day after.
(1) 1v1RWC, Dragonboats, and Swim Gym shall all provide
strict supervision of their respective program participants and shall repair,
at their sole cost, any damage caused by their respective officers,
employees, participants, invitees and guests.
(m) Swim Gym shall have the right to use the swimming pool
throughout the Term, provided, however, that Swim Gym shall make
every effort to accommodate requests during the Term for use of the pool
by MRWC and Dragonboats by allotting the use of one lane of said pool.
(n) Swim Gym shall have the right to use the warming station,
meeting room, boatyard, and exterior play areas as depicted in
Attachments B and C during the period of May, June, July, and August of
the Term Year. Notwithstanding same, Swim Gym may enter the
Property during the Term for the purpose of showing the premises,
employee training and meetings, emergency shelter of summer camp
participants in case of lightning storms, set-up and dismantling of
equipment and site preparation and cleanup in connection with its summer
camp program provided such work is done in such a manner to minimie
interference to other programming at the Property.
(o) Swim Gym shall have the right to use the weight room
weekdays during May, June, July, and August, provided that MRWC and
Swim Gym coordinate use of said room so as to avoid conflict in its use.
(p) Swim Gym shall have the right to use the common area of
the 1,680 square foot Deluxe Modular trailer during the months of June
2/9/2009 4
and July. Dragonboats, NIRWC and Swim Gym shall share the common
area of the Deluxe Modular trailer during the months of April, May,
August and September. All three Licensees shall provide the Department
Nvith advance notice for any occasion it may need to use the common area
of the trailer.
(q) SN -vim Gym shall have the right to conduct bay activities
including; but not limited to, swimming. and water polo during the months
of May. June. July and August.
(r) S«,-im Gym shall coordinate all their safety and chase
vessel activities in the bay so as not to conflict with the rmN ing and
paddling programs of MRWC and Dragonboats set forth above.
(s) Swim Gym shall provide strict supervision of its program
participants and shall repair, at its sole cost, any damage caused by SNS i_m
Gym; its officers, employees, participants, invitees. and guests. The
responsibility of strict supervision shall be particularly observed during
emergency use of boathouse by participants during lightning storms,
preventing children from hanging off of boat racks.
(t) Swim Gym shall have the right to use the meeting room
and such other areas of the Property as may be necessary in May and June
in connection with training and employee orientation and preparation in
connection with its summer camp program. Prior notice shall be provided
to the Department before such use.
(u) All Licensees shall have the non-exclusive privilege to use
the common area parking of the Property and adjacent City parking area
not being utilized by others, at no additional cost. All Licensees shall also
have the non-exclusive privilege to use Marine Stadium parking not being
utilized by others for Special Events, but such use shall be subject to
additional cost per City Code 53-53.
(v) All Licensees shall work cooperatively to schedule and
provide a program of activities, at their respective sole cost, during the
summer and in cooperation with the Department for their designated
Miami City youth participants. The City will provide transportation for
such participants.
(w) The City of Miami reserves the right to use the Property, at
no cost, during the Term provided that such use shall be done in such a
manner as to minimise any interference with approved programs of the
respective Licensees. The City shall make every effort to provide advance
notice to the Licensees. The Property facilities will be closed for use by
the City by 8:00 p.m. on weekdays and 5:00 p.m. on weekends, unless
prior notice is provided to the City by a Licensee and permission is
granted by the Parks Department manager.
2/9/2009 5
E. General Meetings and Events
All Licensees shall have the riaht throughout the Term to use the meeting
room in connection with its Permitted Use, subject to its availability. Each
Licensee shall coordinate said use with the Department, providing sufficient
advance notice to its representative. Each Licensee shall clean the Deluxe
Modular trailer area; meeting room. common areas, and other areas it may have
used at the conclusion of its activities. Failure to clean the area may result in the
revocation of this privilege at the sole discretion of the Department.
3. Licensee's Duties and Responsibilities
During the Term, each Licensee, at its sole cost and expense, shall perform and
oversee all tasks
related to the provision of its programs, including, but not limited to, the
following:
y
i)
be responsible for the provision, installation; repair, maintenance and
replacement of all equipment necessary for its programs;
ii)
provide adequate personnel to provide quality service at all times. The
City shall notify Licensee of any employees of Licensee that are not
deemed to be performing in the best interest of the City;
iii)
upon conclusion of its activities, clean the Property and secure any
movable equipment in the designated storage areas;
iv)
provide security as is required for similar facilities for its Permitted
Uses;
v)
insure that all appropriate equipment and lights have been turned off
and appropriate doors locked at the close of operation within the
Property each day;
vi)
assume all operating costs, except as provided herein, retain all
receipts and be responsible for payment of all labor, operating supplies
and all other general administration expenses related to its Permitted
Uses;
vii)
at all times during the Term continuously conduct operations in the
Property in accordance with the terms of this Agreement, except where
the Property is rendered unusable by reason of fire or other casualty;
viii)
be responsible for compliance of any applicable laws to operate the
business and to provide copies of the operational licenses, permits and
required inspection certificates to the City upon request;
ix)
pay all federal, state and local taxes, which may be assessed against its
operations, equipment, or merchandise while in or upon the Property.
4. Maintenance and Utilities
A. Utilities:
In consideration of their shared use of the Property, the Licensees agree
and acknowledge that the expenses for water, gas heating of pool and electric
utilities will be paid to the City on a monthly reimbursement basis in the
following pro -rations::
2/9/2009 6
tom.
B. The respective monthly amounts obligated by sub -part (A) of this section
shall be paid to the City on the first day of each month along with the monthly
Use Fee, which amount shall be based on the average monthly water, electric and
gas heating pool charge incurred by the City during the period of September 2007
to August 2008. By way of example, if the total amount of water charges
incurred by the City for the period of September 2007 through August 2008 was
$18,000, then the average monthly water charge would be $1, 00.00 per month.
As provided above, Swim Gym would pay 60% of this amount or $900; MRWC
would pay 20% of this amount or $300.00; the City would pay 10% of this
amount or $150.00; and Dragonboats would pay 10% of this amount or $150.00.
The City shall reassess annually the prorated percentage payable by each
organization and shall make any necessary adjustments necessary beginning on
October 1 in any given Term Year.
C. Janitorial Services:
i. Swim Gym shall provide litter control and janitorial services
including the provision of supplies, minor plumbing tasks such as
un -clogging sinks and toilets for the months of May, June, July,
and August during the license term. MRWC shall provide these
same janitorial services for the remaining months of the Term
Year. During the months MRWC is responsible for these services,
it is required to provide cleaning at least three times per week (e.g.
Monday, Wednesday, and Friday) and must provide adequate hand
towels given the level of use by patrons to the Property. MRWC
must provide cleaning services to the Property. Dragonboats, for
its part, shall pay a monthly fee of $100 to the group which has the
responsibility of janitorial services. Each organization shall
provide clean-up and janitorial services immediately after their
own Special Events and/or provide for such clean-up and janitorial
services through the Department of Parks and Recreation,
irrespective of the date the event occurs.
ii. Except for the janitorial services above, the Department shall
provide all routine maintenance and repairs to the building,
including all plumbing, electrical, heating, and air conditioning
systems and equipment, all doors, floor coverings, interior walls,
2/9/2009 7
)A7ater
Electric
Gas Heating Pool
S�Nlm Gvm
J
60%
45%
60%
Na'\ C
20%
J%
0%
Cin-
10%
10%
40%
Drazonboats
v
10%
10%
0%
TOT_kL
100%
100%
100%
B. The respective monthly amounts obligated by sub -part (A) of this section
shall be paid to the City on the first day of each month along with the monthly
Use Fee, which amount shall be based on the average monthly water, electric and
gas heating pool charge incurred by the City during the period of September 2007
to August 2008. By way of example, if the total amount of water charges
incurred by the City for the period of September 2007 through August 2008 was
$18,000, then the average monthly water charge would be $1, 00.00 per month.
As provided above, Swim Gym would pay 60% of this amount or $900; MRWC
would pay 20% of this amount or $300.00; the City would pay 10% of this
amount or $150.00; and Dragonboats would pay 10% of this amount or $150.00.
The City shall reassess annually the prorated percentage payable by each
organization and shall make any necessary adjustments necessary beginning on
October 1 in any given Term Year.
C. Janitorial Services:
i. Swim Gym shall provide litter control and janitorial services
including the provision of supplies, minor plumbing tasks such as
un -clogging sinks and toilets for the months of May, June, July,
and August during the license term. MRWC shall provide these
same janitorial services for the remaining months of the Term
Year. During the months MRWC is responsible for these services,
it is required to provide cleaning at least three times per week (e.g.
Monday, Wednesday, and Friday) and must provide adequate hand
towels given the level of use by patrons to the Property. MRWC
must provide cleaning services to the Property. Dragonboats, for
its part, shall pay a monthly fee of $100 to the group which has the
responsibility of janitorial services. Each organization shall
provide clean-up and janitorial services immediately after their
own Special Events and/or provide for such clean-up and janitorial
services through the Department of Parks and Recreation,
irrespective of the date the event occurs.
ii. Except for the janitorial services above, the Department shall
provide all routine maintenance and repairs to the building,
including all plumbing, electrical, heating, and air conditioning
systems and equipment, all doors, floor coverings, interior walls,
2/9/2009 7
ceilings, decoration (e. g., carpeting; painting_ «all coverings,
drapes and other windo«° treatments, etc.), and all fixtures and
equipment therein throughout the Term. unless such maintenance
and'or repair becomes necessary due to the misuse, act, neglect,
fault or omission of a Licensee. its employees, agents.. customers,
licensees. or invitees in or about the Propem. in which case the
respective Licensee shall bear the sole cost and expense of the
repair.
D. Prior to the start of Swim Gym's summer camp, MRvWC, Swim Gym and
the Department shall perform a walk-thru of the Property noting the condition of
the premises. At the expiration of summer camp, Swim Gym, at its sole cost, shall
repair any damage to the Property caused by summer camp use and the parties
shall conduct a walk-thru of the property to ensure all repairs have been made.
E. In the event the MRWC, Swim Gym or Dragonboats respective license
agreement is canceled for any reason during the Term, the expenses set forth
above shall become the responsibility of the remaining licensees and the City
based on a prorated basis to be negotiated at that time and approved by the
Director.
F. The City has provided a 1;680 square foot Deluxe Modular trailer to be
shared by each Licensee as office space in the performance of their operation.
Each Licensee shall be responsible for their own phone lines, copies, etc inside
their trailer, and keeping clean their portion of the trailer. The City Manager
shall have the right to amend this Agreement to provide for the reimbursement to
the City for such costs associated with the use of the trailers.
G. Swim Gym shall provide swimming pool maintenance and cleaning
throughout the Term. Neither the City nor Swim Gym shall be required to make
any repairs to the swimming pool. In the event the svrimrning pool becomes
unusable, the City Manager and Swim Gym shall have the right to either cancel
the Agreement or modify the Agreement to eliminate Swim Gym's use and
maintenance obligations related to the swimming pool.
2/9/2009 8