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HomeMy WebLinkAboutexhibitsREVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO CANDY HOUSE DAY SCHOOL, INC. FOR THE OCCUPANCY OF 6 PARKING SPACES IN THE PROPERTY LOCATED AT I.6TH AVENUE AND 6x" STREET; MIAMI, FLORIDA 33125 MIAMI, FLORIDA 117I10/410U4 JUMID44fli3 si LFYJ Iit . 11UWU = I1-U .LUP1 rAUt 114 CONTENTS 1. Purpose 1 2. Occupancy And Use Period 1 3. Continuous Duty To Operate 2 4. Interest Conferred By This Agreement 2 5. Use Fee 2 6. Late Fee 3 7. Returned Check Fee 3 8. Adjustment To Monthly Fee, Late Fee And Returned Check Fee 4 9. Security Deposit 4 10. Increase Of Security 4 11. Utilities 5 12. Condition Of The Property 5 13. Alterations, Additions Or Replacements 5 14. Violations, Liens And Security Interests 5 15. City Access To Facility 6 16. Indemnification And Hold Harmless 7 17. Insurance 7 18. No Liability 9 19. Taxes 9 20. Cancellation By Request Of Either Of The Parties Without Cause 10 21. Termination By City Manager For Cause 10 22. Notices 10 23. Advertising 11 24. Common Areas 11 25. Ownership Of Improvements 11 26. Surrender Of Area 11 27. Severability 12 28. No Assignment Or Transfer 12 29. Nondiscrimination 12 LrJ/ n`, Vnbs 14: 1.J .bbb4J /i 15 ORANGE BOWL STADIUM PAGE 04 30. Affirmative Action 13 31. Minority/Women Business Utilization 13 32. Waiver Of Jury Trial 13 33. Waiver 13 34. Amendments And Modifications 13 35. Court Costs And Attoruey(aY Fees 14 36. Compliance With All Laws Applicable 14 37. Hazardous Material 38. Radon Gas 39. Entire Agreement 14 40. Conflict of Interest 14 ii -•mil . y J J.1 .1.1la UICHI'I' . DUWL 11i1JJ.UI'I rr4(at I5 REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is made this — day of 2003, between the City of Miami (the "City') a municipal corporation of the State of Florida and Candy House Day School, Inc., a corporation incorporated under the laws of the State of Florida (the "Licensee"). WHEREAS, this revocable license agreement is not assignable; and WHEREAS, this agreement is revocable -at -will; WHEREAS, in order to carry out the intent as expressed herein and in consideration of the mutual agreements subsequently contained, City and Licensee agree as follows: 1. Purpose. The City is the owner of real property known as the Orange Bowl Stadium located at 1501 Northwest 3rd Street, Miami, Florida (the "Property"). The City has determined that six (6) parking spaces within the Property located in the area depicted in Exhibit "A" attached hereto and made a part hereof, (the "Area") are not needed the days in which no events are held at the Orange Bowl Stadium ("Non -Event Days"). Licensee is the owner and operator of a day care center adjacent to the Area and needs the use of the Area. The City wishes to assist the Licensee in accomplishing its purpose and in furtherance thereof authorizes the Licensee to occupy and use the Area for the Permitted Use, as hereinafter defined, under the conditions hereinafter set forth. The use of the Area is strictly limited to parking and drop-off pickup at the day care center and is not to be used for any other purpose whatsoever (the "Permitted Use"). Any use of the Area not authorized under Permitted Use must receive the written consent of the City Manager, which consent may be withheld for any or no reason, including, but not limited to additional financial consideration. 2. Occupancy And Use Period. 1 .w. w'r `! i d•id 'JV VVI.(iiV VI\rlf '1+.�V LVWV J 1 MI..i VI'I rmum This Agreement shall commence as of the date upon which the City Manager executes this 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 any of the parties hereto, subject to the notice provisions of "Cancellation By Reauest Of Either Of The Parties Without Cause" and "Terminati,Qp py City Manaeer_fQr Cause." 3. This Agreement authorizes the Licensee to use the Area only on Non -Event Days. 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 for 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 is 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, construction, repairs, partitions or alterations to the Area which may be authorized by the City, 5. Use Fee. In consideration for this Agreement, Licensee agrees to pay to the City for the use of the Area a monthly fee in the amount of $150.00 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 "City of Miami" and shall be mailed to Finance Department, 444 S.W. 2nd Avenue, 60 Floor, Miami, Florida 33130, or such other address as may he designated from time to time. 2 mow, w..� �.yyy iJ. a JyJ4�J f �J.J ur,.M1 ruc £ LiWL J 1 NN16 I rHUC. 0, 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 any installment of tie Monthly Fee is not received by City on or before the fifth day of the month, Licensee sh 11 pay to City a late charge in an amount equal to five percent (5%) of the Monthly Fee. S ch late fee shall constitute additional fees due and payable to City by Licensee upon t e date of payment of the delinquent payment referenced above. Acceptance of such 1 to charge by City shall, in no event, constitute a waiver of Licensee's violations with res ect to such overdue amount nor prevent City from the pursuit of any remedy to which 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 (th "Returned Check Fee") based on the following schedule; Returned Amount Returned C eck 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 City by Licensee, upon the date of paymen of the delinquent payment referenced above. Acceptance of Returned Check Fee by City shall, in no event, constitute a waiver of Licensee's violations with respect to uch overdue amount nor prevent City from the pursuit of any remedy to which City mar otherwise be entitled. 8. Security Deposit. Simultaneously with the executon of this Agreement, the Licensee shall deposit with City the sum of $450.00 (3 nigighp Monthly Fee) (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 3 rvl vMl �. VrJJ QJ•Jo a. JV'.J I iiJ i7WWL .71MLJAJM r!UG qe provided. in "Termination By City Manger For Cause") beyond any applicable notice or cure period, the City may use, apply 1r 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 City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) an y sum which 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 City shall no prevent City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which City may be entitled otherwise. At any time or times when 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 violtion of this Agreement, the Security or balance thereof, as the case may be, shall be rturned to Licensee upon the termination of this Agreement or upon any later date after which Licensee has vacated the Area in the same condition or better as existed on the ffective Date, ordinary wear and tear excepted. Upon the return of the Security (or balance thereof) to the Licensee, City shall be completely relieved of liability with respect to the Security. Licensee shall not be entitled to receive any interest on the Security. 9. Increaae Of Security. If Licensee is in default under thus Agreement more than two (2) times within any twelve (12) month period, irrespective) of whether or not such default is cured, then, without limiting City's other rights and emediea provided for in this Agreement or at law or equity, the Security shall automatically be increased by three (3) times the Security then in place. This increase shall be paid by Licensee to City forthwith on demand. 10. Adjustment To Monthly Fee And Security. Commencing twelve months from the Effective Date, or on the first day of the following month if the Effective Date i4 not on the first of the month, and every twelve months thereafter (the "Anniversary D ite(s)"), Licensee agrees that the Monthly Fee and Security shall each be increased by fie percent (5%) of the Monthly Fee and Security respectively, in effect for the immediately preceding Agreement Year. On each 4 �• .r. iJ ._I! 1J f a. ., UI*.HIWG auwL, a I MLlLI"I Anniversary Date the Licensee shall remit payment to the City for the increased amount in Security. Nothing in this paragraph eh 11 be construed to grant Licensee the right to use the Area or maintain the Properties for term greater than on a month to month basis. 11. Utilities. Licensee shall pay for an utilities, including but not limited to, electricity, water, stormwater fees, gas, telephone, garbag and sewage disposal used by Licensee during its occupancy of the Area, as well as all osts for installation of any lines and equipment necessary. Licensee, at its sole cost, shall install all utilities required for its use and install separate utility meters required thereby and shall be billed directly by the applicable utility company for such services. 12. Condition Of The Property. Licensee accepts the Area "as is without any representation by or on be circumstances, be liable for any latent, sole coat, shall maintain the Area in goo' clean, safe and sanitary condition and shall be responsible for all repairs to th thereof. Licensee agrees to make all cha and expense in order to comply with Licensee's occupancy thereof. ', in its present condition and state of repair and half of City, and agrees that City shall, under no patent or other defects in the Area. Licensee, at its i order and repair at all times and in ain attractive, shall suffer no waste or injury thereto. Licensee Area required or caused by Licensee's use of part ages necessary to the Area at Licensee's sole cost ll City, County and State code requirements for 13. Alterations, Additions Or Replacements. Licensee shall not make any r pair or alteration required or permitted to be performed by Licensee.. All alterations to the Area, whether or not by or at the expense of the Licensee, shall, unless otherwise pr immediately upon their completion becc be surrendered with the Area. In the yvided by written agreement of the parties hereto, me the property of the City and shall remain and event of an emergency, Licensee may reasonably proceed to perform such repair work anc shall immediately notify City of such work. 5 wi',ni rwi i]uwL 1 ML.LLM1 h-A(at 1 M All alterations must be in con pliance with all statutes, laws, ordinances and regulations of the State of Florida, M'ami-Dade County, City of Miami and any other agency that may have jurisdiction over he Area as they presently exist and as they may be amended hereafter. 14. Violations, Liens And Security Iy Licensee, at its expense and w cancellation or discharge of or bond off violations arising from or otherwise operations in the Area which shall be jurisdiction. Licensee shall promptly and labor done at Licensee's request. Se of the validity of said liens or claims, within fifteen (16) calendar days of encumbrance. In the event Licensee fai full amount claimed, Licensee shall pa City, including City's costs, expenses agrees to hold City harmless from, and demands and expenses, including reason, contractor, subcontractor, materialmar Licensee has contracted or otherwise i contained in this Agreement shall be consent or agreement on the part of terests. ith due diligence and dispatch, shall secure the ame in the manner permitted by law, all notices of in connection with Licensee's improvements or ssued by any public authority having or asserting ay its contractors and materialsmen for all work ould any such lien be asserted or filed, regardless icensee shall bond against or discharge the same icensee's receipt of notice of the filing of said s to remove or bond against said lien by paying the the City upon demand any amount paid out by nd reasonable attorneys' fees. Licensee further to indemnify the City against, any and all claims, gable attorney's fees, by reason of any claims of any , laborer or any other third person with whom found liable for, in respect to the Area. Nothing deemed, construed or interpreted to imply any ity to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, materialsman or supplier thereof again thereon and each such contract shall p t any part of the Area or any of the improvements ovide that the contractor must insert a statement in any subcontract or purchase order th t the contractor's contract so provides for waiver of lien and that the subcontractor, mateialman and supplier agree to be bound by such provision. 15. City Access To Facility. 6 f.JRMI*Ik�G DUWL J I ML,I.JI.1 rHut: l i City and its authorized represertative(s) shall have at all times access to the Area and the Property. City will maintain al complete set of keys to the Area and the Property. Licensee, at its sole coat and expense, may duplicate or change key locks to the Area but not until first receiving written apTroval from the Director of the Office of Asset Management (hereinafter "Director") fpr 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 City a copy or copies of said keys, if rriore than one copy is required. The City shall have access to and entry into the Area and the Property at any time to (a) inspect the Area and Property, () to perform. any obligations of Licensee hereunder which Licensee has failed to perform a'ter 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, inclusive of 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 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 lose, cost or damage to the Licensee by reason of th exercise by the City of the right of entry described herein for the purposes listed above. The making of periodic inspection or the failure to do so shall not operate to impose upon City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 16. Indemnification And Hold Harmless. The Licensee shall indemnify, hold harmless and defend the City from and against any and all claims, suits, action, 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 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 1 7 lU/ UL/ 6UUM 1J. J. JUJCyJ 111J U1[MI'I% . CUM- J I NW1UM rmut 14 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, costa, liabilities, suits, actiions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, or officials. 17. Insurance. Licensee, at its sole cost, shall btain and maintain in full force and effect at all times throughout the period of this Agreement, the following insurance coverage: A. Commercial General liabi ity insurance on a Comprehensive General liability coverage form, or its equivalent, includi g premises, operations and contractual coverage's against all claims, demands or actions or bodily injury, personal injury, death or property damage occurring in or about the Area tith such limits as may be reasonably requested by the, City from time to time but not lesp 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 insurl nee. B. • Automobile liability ins ranee covering all owned, non -owned and hired vehicles used in conjunction with ope . ations covered by this agreement. The policy or policies of insurance shall contain a co bined single limit of at least $500,000 for bodily injury and property damage. The re uirements of this provision will be waived upon submission of a written statement fro Licensee that no automobiles are used to conduct business. C. "A11 Risk" property insurance against loss or damage by fire, windstorm, with such endorsements for extended overage, vandalism, malicious mischief, flood and special coverage, insuring 100% of the replacement cost of Licensee's improvements, fixtures, equipment, furniture and all otiher personal property in and about the Area. D. Worker's Compensation i 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 requi ements by the issuance of a notice in writing to Licensee. The Licensee shall provide apny other insurance or security reasonably required by the City. 8 'JfCFiI Y�JL. LILJWL J I /IL/i VI.1 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, 9 h Floor, Miami, Florida 33130, with copy to City of Miami, Office of Asset Management, 444 SW 2 Avenue, 3rd Floor, Miami, Florida 33130, or such other address that may be designated from time to time. G. A current Evidence and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Office of Asset Management 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 leas 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. 18. No Liability. In no event shall the City he liable or responsible for injury, loss or damage to the property, improvements, fixtures 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 9 IV/ UL/ GU%JJ 14: 17 ,7U0,O44 I11, urcµrnx. nuWL. a ! M J.UM h•ragk 14 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 facilitiee or occupants of the Property or any person whomsoever whether such damage or injury results from conditions arising upon the Area or upon other portions of the Property or from other sources. License© indemnifies the City its officers, agents and employees from and against any and all such claims even if the claims, costs, liabilities, suite, 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 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. 19. Taxes and Fees Licensee shall pay before any fine, penalty, interest or costa is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Area, its proportionate share of the Property and/or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Area or Property by Licensee, including, but not limited to, advalorem taxes, fire fees and parking surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent of the contested tax or fee with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. 20. Cancellation By Request Of Either Of The Parties Without Cause. Either party may cancel this Agreement at any time by giving thirty (30) days written notice to the non -canceling party prior to the effective date of the cancellation. 10 -JOW., "/'IJ -J. i.1 JVJ V'1J I�.y�J umiANUM AUWL J I HLIUM PAGE 15 21. 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) 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. 22. 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 SW 2 Avenue, 100% Floor Miami, FL 33130 WITH A COPY TO City of Miami Office of Asset Management 444 SW 2 Avenue, Suite 325 Miami, FL 33130 LICENSEE Rene Diaz, Owner Candy House Day School, Inc. 1628 NW 6 Street Miami, Florida 33125 23. Advertising. Licensee shall not permit any signs or advertising matter to be placed either in the interior or upon the exterior of the Area or the Property without having first obtained the approval of the Director or his 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 I1 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 Area or Property. If any part of the Area or 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 Area or Property within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Area or Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay 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 or Property an appropriate sign. indicating City's having issued this Agreement. 24. Common Areas. Licensee shall have the nonexclusive right (in common with other occupants of the Property) to use the Common Areas of the Property identified as "Common Area" in Exhibit "A" attached hereto and made a part hereof, for the purposes intended, subject to such rules and regulations as City may establish from time to time. 25. Ownership Of Improvements. As of the Effective Date and throughout the Use Period, all buildings and improvements thereon shall be vested in 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. 26. Surrender Of Area. In either event of cancellation pursuant to "Cancellation By Reoue@t Of Either 0( The Parties Without Cause" or "Termination _By City Manager For Cause", or at the 12 URHIVUC DUAL 5I H4. LLJ I PA5E 17 expiration of the time limited by the notice, Licensee shall peacefully surrender the Area 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 Area. Upon surrender, Licensee shall promptly remove all its personal property, trade fixtures 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 City directing the required. repairs, City shall cauae the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. At City's option, City may require Licensee to restore the Area so that the Area shall be as it was on the Effective Date. In the event Licensee fails to remove its personal property, equipment and fixtures 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 City 'sees fit, all at Licensee's sole coat and expense. 27. 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 unlawful under the laws of the State of Florida or the City, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the City, and in such event, the remaining terms and conditions of this Agreement shall remain unmodified and in full force and effect. 28. No Assignxnent Or Transfer. Licensee cannot assign or transfer its privilege of occupancy and use granted unto it by this Agreement. 29. Nondiscrimination. 13 1W UL/ ZILIU4 JU5b44 I110 UKAN(st !lUUJL I All1UM PAGE 18 Licensee shall not discriminate as to race, color, religion, sex, national origin, age, disability or marital status in connection with its occupancy and use of the Area and improvements thereon. 30. 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. 31. Minority/Women Business Utilization. Licensee shall make every good faith effort to purchase/contract fifty-one percent (51%) of its annual goods and services requirements from Hispanic, Black. and Women businesses/professionals registered/certified with the City Office of Minority/Women Business Affairs. Such lists will be made available to the Licensee at the time of the issuance of the Agreement by the City and updates will be routinely provided by the City's Office of Minority/Women Business Affairs. 32. Waiver Of Jury Trial. The parties hereby knowingly, irrevocable, 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. 14 1 h/ ►7L/Lbgi 1.7: 1.J .7U5b4.3 / 115 UNANUt OUWL t I H1JiUM PAGE 19 33. Waiver. No failure on the part of the City to enforce or insist upon performance of any of the terms of this Agreement, nor any waiver of any right hereunder by the City, unless in writing, shall be construed as a waiver of any other term or as a waiver of any future right to enforce or insist upon the performance of the same term. 34. 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. 35. Court Costa And Attorney(s)' Fees. In the event it becomes necessary for City to institute legal proceedings to enforce the provisions of this Agreement, Licensee shall pay City's court costa and attorneys' fees through all trial and appellate levels. 36. Compliance With All Laws Applicable. Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local laws, ordinances and regulations is a condition of this Agreement, and Licensee shall comply therewith as the same presently exist and as they may be amended hereafter. This Agreement shall be construed and enforced according to the laws of the State of Florida. 37. 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 and administrative actions and orders relating to hazardoue materials ("Hazardous Materials Laws"), including, without limitation, any Hazardous 15 la/W2UUJ 3U5543/115 ORANGE BOWL STADIUM PAGE 20 Materials 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" (collectively "Hazardous Materials"), under any such laws, ordinances or regulations. 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 or required for. the Licensee's use 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 cancellation or revocation of this Permit, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed ill 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 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, all applicable governmental requirements. The requirements of this Paragraph of the License shall survive the cancellation or revocation of this License. The City represents that: (i) To the best of its knowledge there are no environmental violations, whether under federal, state, or local laws, existing on the Area; (ii) To the best of its knowledge there are no Hazardous Materials presently existing on the Area. 38. 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 public health unit. Licensee may, have an appropriately licensed person test the Area for radon. If the radon level exceeds acceptable EPA 16 i li/ i2/ 2iJ .13 13: 1'9 3056437115 ORANGE BOWL STADIUM PAGE 21 standards, the City may choose to reduce the radon level to an acceptable EPA level, failing which either party ntay cancel this License. 39. Entire Agreement. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations or representations not expressly set forth in this Agreement are of no force or effect. This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties, and the parties covenant that this Agreement shall not be construed in favor of or against either of the parties. 40. 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, sea.) 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 such conflict of interests) on the part of Licensee, its employees or associated persons, or entities must be disclosed in writing to the City. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: 17 J.rJ/ GL/ LKJC.7 4G9h44/115 ORANGE BOWL STADIUM PAGE 22 Priscilla A. Thompson City Clerk Joe Arriola City Manager APPROVED. AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: , Director Alejandro Vilarello Department of Risk Management City Attorney LICENSEE: WITNESS: By: By: By: By: Signature Signature Print Name Print Name Signature Print Name 18 117/U2/2003 13:19 3055437115 ORANGE BOWL STADIUM PAGE 23 FXHIBIE$. 19