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HomeMy WebLinkAboutexhibitREVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO SPEAKEASY RETURNING TO OUR ROOTS FOR THE USE OF A PORTION THE PROPERTY LOCATED AT 1490 NW 3RDAVENUE MIAMI, FLORIDA qo p � p400(go a TABLE OF CONTENTS Recitals 1 1. Purpose. 2 2. Occupancy And Use Period. 2 3. Continuous Duty to Operate. 3 4. Interest Conferred By This Agreement. 3 5. Use Fee. 3 6. Late Fee. 4 7. Returned Check Fee. 4 8. Security Deposit. 5 9. Adjustment to Monthly Fee and Security Deposit. 6 10. Utilities. 6 11. Condition and Maintenance of the Area. 7 12. Alterations, Additions or Replacements. 7 13. Ownership of Alterations and Improvements. 8 14. Violations, Liens And Security Interests. 8 15. City Access to Area. 9 16. Indemnification and Hold Harmless. 10 17. No Liability. 10 18. Hazardous Materials. 11 19. Radon Gas. 12 20. Insurance. 12 21. Safety. 14 22. Taxes and Fees. 14 23. Cancellation By Licensee. 14 24. Revocable License Agreement is Revocable At Will. 14 25. Surrender of Area. 15 26. Notices. 15 27. Advertising. 16 28. Americans with Disabilities Act. 17 29. Non-discrimination. 17 30. Affirmative Action. 17 31. Minority/Women Business Utilization. 17 32. Litigation. 18 33. Court Costs and Attorney(s') Fees. 18 34. Waiver of Jury Trial. 18 35. Non -waiver of Default. 19 36. No Assignment or Transfer. 19 37. Amendments and Modifications. 19 38. Severability and Savings Clause. 19 39. Compliance with all Applicable Laws. 20 40. Time of Essence. 20 41. Further Acts. 20 42. Third Party Beneficiary. 20 43. No Partnership. 20 44. Conflict of Interest. 21 45. Captions. 21 46. Interpretation. 21 47. Entire Agreement. 21 48. Authority. 22 Exhibit A - THE AREA ii REVOCABLE LICENSE AGREEMENT This revocable license agreement ("Agreement") is entered this day of 2004, (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 Speak Easy Returning To Our Roots, Inc. (the "Licensee"), a corporation established under the laws of the State of Florida and also known as "Speak Easy Tutors," together the Parties. RECITALS WHEREAS, the City is the owner of the real property and improvements located at 1490 NW 3rd Avenue, Space # 111, Miami, Florida within the Overtown Shopping Center ("the Property") ; and WHEREAS, the Licensee has expressed an interest in using approximately 1,167 square feet of space located within the Property (the "Area") for educational programs and as administrative offices; and WHEREAS, the City and the 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; NOW THEREFORE, in, consideration of the mutual covenants set forth herein, the parties hereby agree as follows: 1. PURPOSE. The City is the owner of real property and improvements thereon located at 1490 NW 3`d Avenue, Miami, Florida (the "Property"). The City has determined that approximately 1,167 square feet of space within the Property (the "Area"), commonly known as Space # I11, which is depicted in Exhibit "A" attached hereto and made a part hereof, is not needed at this time by any of the City's offices or Departments. The City has expressed its desire to assist the Licensee in accomplishing its purpose and in furtherance thereof, authorizes the Licensee to occupy and use the Area underthe conditions hereinafter set forth. Subject to existing zoning and other governmental restrictions and the issuance of this Agreement, this Agreement authorizes the Licensee to occupy and use the Area primarily for educational and administrative activities, which may include activities such as tutoring, linguistic, communications, evaluation, test preparation, parent/student classes, together with associated ancillary uses, and for no other purpose whatsoever (the "Permitted Use"). Licensee shall operate, manage, supervise and administer the Area as an independent contractor and not as an employee of the City. Any use of the Area not authorized under the Permitted Use must receive the prior written consent of the City Manager, which consent may be withheld or conditioned for any or no reason, including, but not limited to additional financial consideration. Licensee shall ensure that the Area and all of Licensee's activities thereon, or resulting from, in connection with or relating to the Licensee's use of the Area, shall be available to all segments of the community including the physically disabled and financially disadvantaged. Licensee shall comply with the American with Disabilities Act. 2. OCCUPANCY AND USE PERIOD. This Agreement shall commence as of the date upon which the City Manager executes this Agreement (the "Effective Date"). It is a revocable Agreement. This Agreement may be terminated in the following manner: (a) Cancellation by Licensee; or (b) Revocation by the City. 2 3. CONTINUOUS DUTY TO OPERATE. Except where the Area is rendered untenantable by reason of fire or other casualty, Licensee shall at all times during this Agreement, occupy the Area upon the Effective Date and shall thereafter continuously conduct operations in the Area in accordance with the terms of this Agreement. 4. INTEREST CONFERRED BY THIS AGREEMENT. Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Area solely for the limited purpose of the Permitted Use and no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease and the rights of Licensee hereunder are not those of a tenant but are a mere personal privilege to do certain acts of a temporary character and to otherwise use the Area subject to the terms of this Agreement. No leasehold interest in the Area is conferred upon Licensee under the provisions hereof and Licensee does not and shall not claim at any time any leasehold estate or ownership interest in the Area by virtue of this Agreement or its use of the Area hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Area by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions, or alterations to the Area even if such improvements, construction, repairs, partitions, or alterations are authorized by the City. 5. USE FEE. In consideration of this Agreement, Licensee agrees to pay to the City a monthly Use Fee (the "Use Fee") in the amount of Seven Hundred and Twenty Nine and 38/100 Dollars ($729.38), plus a State of Florida Use Tax of Fifty One and 6/100 Dollars ($51.06) (if applicable) for the license to use the City's Area, commencing on the seventh month following the Effective Date of this Agreement. The Use Fee and the Use Tax (if applicable) shall be due each month without notice or demand, and shall be paid in advance and in full on the first day of each month. Payments shall be made payable to the "City of Miami" and shall be mailed to the "City of Miami, Finance Department, 444 S.W. 2nd Avenue, 6th Floor, Miami, Florida 33130", or such other address as may be designated from time to time. In the event the Effective Date does not fall on the first day of the month, the Use Fee will be prorated on a daily basis for that month. Licensee shall be responsible for any costs associated with the operation of the programs and activities conducted in the Area, including, but not limited to, equipment, security and insurance during its operating hours. 6. LATE FEE. The Licensee hereby acknowledges that late payment by the Licensee to the City of use fees 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 monthly use fee or any other sum due from the Licensee shall not be received by the City within fifteen (15) days after which such sum was due, the 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 the Licensee. Acceptance of such late charge by the City shall not constitute a waiver of the Licensee's default 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. 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 until paid. Payment of such interest shall not excuse or cure any default by the Licensee under this Agreement. 7. RETURNED CHECK FEE. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule: Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. The Returned Check Fee shall constitute additional fees due and payable to the City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by the City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 8. SECURITY DEPOSIT. Simultaneously with the execution of this Agreement, the Licensee shall deposit with the City the sum of Two Thousand One Hundred and Eighty Eight and 14/100 Dollars ($2,188.14) (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 of the terms of this Agreement, the City may use, apply or retain all or any part of the Security for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by the City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum which the City may expend or be required to expend as a result of Licensee's violation. The use, application or retention of the Security or any portion thereof by the City shall not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. At any time or times when the City has made any such application of all or any part of the Security, the Licensee shall deposit the sum or sums equal to the amounts so applied by City within ten (10) days of written notice by the City. Provided Licensee is not in violation of this Agreement, the Security or balance thereof, as the case may be, shall be returned to Licensee upon the termination of this Agreement or upon any later date after which Licensee has vacated the Area in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Security (or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect to the Security. Licensee shall not be entitled to receive any interest on the Security. 5 9. ADJUSTMENT TO MONTHLY FEE AND SECURITY DEPOSIT. Commencing twelve (12) 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 thereafter (the "Anniversary Date(s)"), Licensee agrees that the Monthly Fee and Security shall be increased by three percent (3%) of the Monthly Fee and Security respectively, in effect for the immediately preceding Agreement Year. For purposes of this Agreement, Agreement Year shall mean any period of time consisting of twelve (12) consecutive calendar months commencing on each anniversary thereafter. On each Anniversary Date the Licensee shall remit payment to the City for the increased amount in Security. Nothing in this paragraph shall be construed to grant Licensee the right to use or occupy the Area for a term greater than on a month -to -month basis. 10. UTILITIES. Licensee shall pay for all. utilities and services, including but not limited to, electricity, water, storm water fees, gas, telephone, garbage and sewage disposal used by Licensee during its occupancy of the Area, as well as all costs for installation of any necessary lines and equipment. Licensee, at its sole cost, shall install all utilities required for its use, install separate utility meters, and shall be billed directly by the applicable utility company for such services. In the event that the City is billed for any utility or service that is a result of Licensee's use of the Area, the Licensee shall reimburse such amount to the City within five (5) calendar days of notification of the City's receipt of said bill. Until such time that Licensee's actual water and sewer consumption may be calculated, Licensee agrees to pay to the City, in addition to its Monthly Fee, an amount of $.50 per square foot or Forty Eight Dollars and 63/100 ($48.63) per month plus State Use Tax, if applicable ("Water Fee"). This amount shall be paid in advance and in full on the first day of each month, without notice or demand. Licensee shall pay to the City the first installment of the Water Fee on the first (1st) day of the second month following the Effective Date of this Agreement and thereafter on the first (1st) day of each and every month that Licensee continues to occupy and use the Area. Upon termination of this Agreement, Licensee shall pay to the City for the last month of occupancy, the Water Fee for use of the Area. The City reserves the right to interrupt, curtail or suspend the provision of any utility service, including but not limited to, heating, ventilating and air conditioning systems and 6 equipment serving the Area, to which Licensee may be entitled hereunder, when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the judgment of the City desirable or necessary to be made, or due to difficulty in obtaining supplies or labor, or for any other cause beyond the reasonable control of the City. The work of such repairs, alterations or improvements shall be prosecuted with reasonable diligence. The City shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility service to Licensee or for any limitation of supply resulting from governmental orders or directives. Licensee shall not claim any damages by reason of the City's or other individual's interruption, curtailment or suspension of' a utility service, nor shall the Revocable License or any of Licensee's obligations hereunder be affected or reduced thereby. 11. CONDITION AND MAINTENANCE OF THE AREA. Licensee accepts the Area "as is", in its present condition and state of repair and without any representation by or on behalf of the City, and agrees that the City shall, under no circumstances, be liable for any latent, patent or other defects in the Area. Licensee, at its sole cost, shall maintain the Area in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall cause no waste or injury thereto. Licensee, at its sole cost, shall provide cleaning services for the Area. Licensee, at its sole cost and expense, shall hire a pest control company, as needed, to insure that the Area will at all times be in a clean and sanitary condition and free from vermin. Licensee agrees to provide any and all security it deems necessary to protect its operations and equipment. Licensee shall insure that all appropriate equipment and lights have been turned off and appropriate doors locked at the close of operations within the Area each day. Licensee shall be responsible for all repairs to the Area required or caused by Licensee's use of any part thereof. Licensee agrees to make all changes necessary to the Area at Licensee's sole cost and expense in order to comply with all City, County, State and Federal code requirements for Licensee's use or occupancy thereof. 12. ALTERATIONS, ADDITIONS OR REPLACEMENTS. Except in the event of an emergency, Licensee shall not make any repair or alteration required or permitted to be performed by Licensee unless and until Licensee shall have caused 7 plans and specifications therefore to be prepared, at Licensee's sole expense, by an architect or other duly qualified person and shall have obtained City Manager's approval, which approval may be conditioned or withheld for any or no reason whatsoever. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify the City of such work. The Licensee shall submit to the City proof of funding and/or its financing plans along with the plans and specifications. The Licensee shall be solely responsible for applying and acquiring all necessary permits, including but not limited to, building permits. The Licensee shall be responsible for all costs associated with any alterations including, but not limited to, design, construction, installation, and permitting costs. All alterations must comply with all statutes, laws, ordinances and regulations of the State of Florida, Miami -Dade County, the City of Miami and any other agency that may have jurisdiction over the Area as they presently exist and as they may be amended hereafter. By the installation of any alteration, addition or replacement, the City shall not be excluded from the Area. 13. OWNERSHIP OF IMPROVEMENTS. As of the Effective Date and throughout the use period, title to the Area and all improvements thereon shall be vested in City. Furthermore, title to all Alterations made in or to the Area, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. 14. VIOLATIONS, LIENS AND SECURITY INTERESTS. Licensee, at its sole expense and with due diligence and dispatch, shall secure the cancellation, discharge, or bond off in the manner permitted by law, all notices of violations arising from, or otherwise connected with, Licensee's alterations or improvements, use, occupancy, or operations in the Area which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors, subcontractors, and material men for all work and labor done at Licensee's request. 8 Should any lien, claim, or encumbrance be asserted or filed, Licensee shall bond against or discharge the same regardless of validity, within ten (10) calendar days of Licensee's receipt of notice of the filing of said lien, claim, or encumbrance. In the event Licensee fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim and Licensee shall pay the City upon demand any amounts paid out by the City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. Licensee further agrees to hold the City harmless from and to indemnify the City against any and all claims, demands and expenses, including attorney's fees, of any contractor, subcontractor, material man, laborer or any other third person with whom Licensee has contracted or otherwise is found liable, in respect to the Area. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of the City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, material man or supplier against any part of the Area or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other agreements involving the Area shall provide for the waiver of any lien rights in the Area and provide that the contracting party agrees to be bound by such provision and include the waiver provision in any sub agreement. 15. CITY ACCESS TO AREA The City and its authorized representative(s) shall at all times have access to the Area. The City shall have access to and entry into the Area at any time to (a) inspect the Area, (b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, Licensee not having cured such matter within ten (10) calendar days of such notice, (c) to assure Licensee's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules and regulations, (d) to show the Area, to prospective purchasers or lessees or licensees, and (e) for other purposes as may be deemed necessary by the City; provided, however, that the City shall make a diligent effort to provide at least 24-hours advance notice and Licensee shall have the right to have one or more of its representatives or employees present during the time of any such entry. 9 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. 16. INDEMNIFICATION AND HOLD HARMLESS The Licensee shall indemnify, hold harmless and defend the City from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising during the period of this Agreement, for any personal injury, loss of life or damage to property sustained in or on the Area, by reason of or as a result of Licensee, its employees, agents, contractors, subcontractors or officials use or operations thereon, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorney's fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof; even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, contractors, subcontractors or officials. 17. NO LIABILITY. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, and/or equipment belonging to or rented by Licensee, its officers, agents, employees, contractors, subcontractors, invitees or patrons occurring in or about the Area that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Area, or from the breakage, leakage, obstruction or other defects of the pipes, wires, appliances, plumbing, air conditioning or lighting fixtures of the Area, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Area or any person whomsoever whether such damage or injury results from conditions arising upon the Area or from other sources. Licensee indemnifies the City, its officers, agents and employees from and against any and all such claims, even if the claims, costs, liabilities, 10 suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, or officials. Licensee further acknowledges that as lawful consideration for being granted the privilege to utilize and occupy the Area, Licensee, on behalf of himself, his agents, invitees or patrons, employees, contractors, and subcontractors, 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. Licensee assumes all risk of loss resulting from the use of the Area. 18. HAZARDOUS MATERIALS The Licensee shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders, administrative actions and administrative orders, including, without limitation, any Hazardous Material Laws ("Hazardous 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, under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The Licensee shall, at its sole cost and expense, procure, maintain in effect, and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Area required for the Licensee's use, or storage of, any Hazardous Materials in or about the Area in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this Agreement, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Area by the Licensee or at the Licensee's direction, to be removed from the Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this Article to prohibit the Licensee from operating in the Area for the uses described in the Section of this Agreement entitled 11 "Purpose". The Licensee may operate according to the custom of the industry, so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. 19. 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. User may have an appropriately licensed person test the Area for radon. If the radon level exceeds acceptable EPA standards, the City may choose to reduce the radon level to an acceptable EPA level, failing which either party may cancel this Agreement. 20. INSURANCE Licensee, at its sole cost, shall obtain and maintain in full force and effect at all times throughout the period of this Agreement, the following insurance coverage: A. Commercial General Liability Insurance on a Comprehensive General liability coverage form, or its equivalent, including premises, operations and contractual coverage's against all claims, demands or actions for bodily injury, personal injury, death or property damage occurring in or about the Area with such limits as may be reasonably requested by the City from time to time, but not less than $1,000,000 per occurrence combined single limit for bodily injury and property damage. The City shall be named as Additional Insured on the policy or policies of insurance. B. Automobile Liability Insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this Agreement. The policy or policies of insurance shall contain such limits as may be reasonably requested by the City from time to time but not less than One Million Dollars ($1,000,000.00) 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. The City of Miami shall be named as additional insured on the policy or policies of insurance. 12 C. Worker's Compensation in the form and amounts required by State law, if applicable. D. The City of Miami, 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. E. 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, 9th Floor, Miami, Florida 33130, with copy to the City of Miami, Department of Economic Development, 444 SW 2nd Avenue, 3'd Floor, Miami, Florida 33130, or such other address that may be designated from time to time. F. A current Evidence and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Department of Economic Development at the commencement of the term of this Agreement and a new Evidence and Policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: the company should be rated "A" as to management, and no less than class "X" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the company holds a valid Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and is a member of the Florida Guarantee Fund. Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required, does not constitute a waiver of the Licensee's obligation to fulfill the insurance requirements herein. In the event Licensee shall fail to procure and place such insurance, the City may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Licensee to the City as an additional fee upon demand and shall in each instance be collectible on the first day of the month or any subsequent month following the date of payment by the City. Licensee's failure to procure insurance shall in no way release Licensee from its obligations and responsibilities as provided herein. 13 21. SAFETY 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 occupancy of the Area, Licensee shall contact the Risk Management Department at (305) 416-1800 to schedule the inspection(s). 22. TAXES AND FEES. Licensee shall pay before any fine, penalty, interest or cost is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Area, or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Area by Licensee, including, but not limited to, ad valorem taxes, fire fees, and parking surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify the City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred percent (100%) of the contested tax together with all interest, costs and expenses, including reasonable attorneys' fees, expected to be incurred. 23. CANCELLATION BY LICENSEE. Licensee may cancel this Agreement at any time by giving thirty (30) days written notice to the City prior to the effective date of the cancellation. 24. REVOCABLE LICENSE AGREEMENT IS REVOCABLE AT WILL. This Agreement extended to the Licensee is revocable at will by the City Manager and without the consent of the Licensee. 14 25. SURRENDER OF AREA. In either event of cancellation pursuant to "Cancellation By Licensee" or "Revocable License Agreement is Revocable at Will", Licensee shall peacefully surrender the Area in good condition, broom clean and repair, together all alterations, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, Licensee shall promptly remove all of its personal property, including all construction materials and all equipment, and Licensee shall repair any damage to the Area caused thereby. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay to the City the full cost of such repairs within five (5) calendar days of receipt of an invoice indicating the cost of such required repairs. At the City's option, the City may require Licensee, at Licensee's sole cost and expense, to restore the Area to a condition acceptable to the City. In the event Licensee fails to remove its personal property and equipment from the Area within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as the City sees fit, all at Licensee's sole cost and expense. 26. 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: If to City of Miami: City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 15 With a Copy to: With a Copy to: If to Licensee: City Attorney City of Miami 444 SW 2"d Avenue Suite 945 Miami, Florida 33130 Department of Economic Development City of Miami 444 SW 2"d Avenue, 3rd Floor Miami, Florida 33130 Speak Easy Returning To Our Roots Attention: Ms. Mary Beasley Gilbert (Registered Agent) 5018 SW 168m Avenue Miramar, Florida 33027 27. ADVERTISING. Licensee shall not permit any signs, decoration, or advertising matter to be placed upon the exterior of the Area without having first obtained the approval of the Director of the Department of Economic Development or his/her designee, which approval may be withheld for any or no reason, at his sole discretion. Licensee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this Agreement, Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Area. If any part of the Area is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Area an appropriate sign indicating the City's has issued this Agreement. 16 28. AMERICAN WITH DISABILITIES ACT. Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of utilizing the Area including Titles I and II of the ADA (regarding non-discrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall take affirmative steps to ensure non-discrimination in employment of disabled persons. 29. NON-DISCRIMINATION. Licensee shall not discriminate as to race, color, religion, sex, national origin, age, disability, or marital status in connection with its occupancy and/or use of the Area and improvements thereon. 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 complies 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. The City will make such lists available to the Licensee at the time of the issuance of the Agreement and the City's Office of Minority/Women Business Affairs will routinely provide updates. 17 32. 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. 33. COURT COSTS AND ATTORNEY(S)' FEES. In the event it becomes necessary for the City to institute legal proceedings to enforce or interpret the provisions of this Agreement, Licensee shall pay the City's court costs and attorney's fees through all trial and appellate levels. Licensee acknowledges that Florida law provides for mutuality of attorney's fees as a remedy in contract cases and specifically and irrevocable waives its right to collect attorney's fees from the City under applicable laws, including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent of the parties hereto that in no event will the City be required to pay Licensee's attorney's fees and court costs for any action arising out of this Agreement. In the event that Licensee's waiver under this section is found to be invalid, then Licensee agrees that the City's liability for Licensee's attorney's fees and court costs shall not exceed the sum of $100.00. In the event that the waiver and limitations contained herein are found to be invalid, or are otherwise not upheld, then the provisions of this Section shall become null and void and each party shall be responsible for its own attorney's fees and costs. 34. WAIVER OF JURY TRIAL. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Licensee entering into the subject transaction. 18 35. NON -WAIVER OF DEFAULT Any failure by the City at any time or from time to time to enforce and require the strict keeping and performance of any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City from insisting on the strict keeping and performance of such terms or conditions at any later time. No waiver of any right hereunder shall be effective unless in writing and signed by the City. 36. NO ASSIGNMENT OR TRANSFER. The Licensee may not assign or transfer this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement. 37. 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. 38. SEVERABILITY AND SAVINGS CLAUSE. It is the express intent of the parties that this Agreement constitutes a license and not a lease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than a license, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. With regard to those provisions which do not affect the parties intent for this Agreement, should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such 19 laws, or if not modif able, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. 39. COMPLIANCE WITH ALL APPLICABLE LAWS. The Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local laws, ordinances and regulations is a condition of this Agreement, and the Licensee shall comply therewith as the same presently exist and as they may be amended hereafter. This_Agreement shall be governed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other rules, which would require the application of the laws of another jurisdiction. 40. 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. 41. 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 any and all such further acts, deeds and assurances as may be necessary to consummate the transactions contemplated hereby. 42. THIRD PARTY BENEFICIARY. 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. 43. NO PARTNERSHIP. Nothing contained herein shall make, or be construed to make any party to this Agreement a principal, agent, partner or joint venturer of the other. 20 44. 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 interest(s) on the part of Licensee, its employees or associated persons, or entities. must be disclosed in writing to the City. 45. CAPTIONS. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 46. INTERPRETATION. This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction nor that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 47. 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 is of no force or effect. 21 48. 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 on behalf of the respective parties to this Agreement. 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: Priscilla A. Thompson City Clerk Joe Arriola City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: Dania Carrillo Maria J. Chiaro Administrator, Risk Management Dept. Interim City Attorney 22 WITNESS: By: LICENSEE: Speak Easy Returning To Our Roots, Inc., a for profit corporation organized under the laws of the State of Florida (also known as Speak Easy Tutors). By: Signature Signature Print Name Print Name WITNESS: By: Signature Print Name 23 (Corporate Seal) EXHIBIT A THE AREA 24 EXHIBIT IA, OVERTOWN SHOPPING CENTER 1490 NW 3rd Avenue Niani, Florida 'AAK[NC. ♦ • •�. • • •\ :,r. t.IEa. ii• • (VA I. 7•4. `+i i %• .1 .. +. • I' .00 :rila 141,.i4 5.265 sf 15.43Z • #11211 "`riz•A 2,433 sf 7.131 2.000 sf 5.86X i 1 �• � • til— ��...11s«• i 1 �'••'•tii • l•'••r1•• � r. •.. 1 s• tler44477".:1 J- iL • • 4.I"M l(uI •!I. rys •..! a J •W W 11 i• • .1• • 11 1• • ▪ r..,J wi•••-1.f+_r, 1: it; • •• • 7 •\• i .. tip. .t,• • • •if r 1 I . • 1, • 1 .. 1 •1 r i •