HomeMy WebLinkAboutexhibit1DRAFT
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
DRAFT
TABLE OF CONTENTS
PAGE
1. Recitals 1
2. Definitions 1
3. This Agreement Confers No Exclusive Possession of Property 3
4. Permitted Uses 3
5. Program Operators 4
6. Manner of Property Use 4
7. Term 5
8. Automatic Termination 5
9. Cancellation by request of either of the Parties without cause 5
10. This License Agreement is Not Assignable 5
11. Use Fee 6
12. Percentage Fee 6
13. Financials 8
14. Returned Check Fee 9
15. Late Payments 9
16. Security Deposit 10
17. Taxes 11
18. Condition of the Property and Maintenance 11
19. Alterations, Additions or Replacements 12
20. Mechanic's Lien 12
21. Licenses, Authorizations & Permits 13
22. No Liability 13
23. No Claim to Assets or Rights of Licensee 14
24. Compliance With Laws 14
25. Additional Expenses 14
26. Indemnification 14
27. Insurance 15
28. Safety 17
29. Americans With Disabilities Act 17
30. City Access To Property 17
31. Public Records 18
32. Nondiscrimination 18
33. No Discrimination in Hiring 18
34. Conflict of Interest 19
35. Waiver of Jury Trial 19
36. Notices 19
37. Advertising 20
38. Waiver 21
39. Ownership of Improvements 21
40. Surrender Of Property 21
41. Compliance with Environmental Laws 22
42. Invaiidity 22
43. Time of Essence 23
44. No Interpretation Against Draftsmen 23
45. Further Acts 23
46. Litigation 23
47. Third Party Beneficiary 23
48. No Partnership 23
49. Amendments 24
50. Miscellaneous 24
51. Entire Agreement 24
52. Radon gas 24
53. Authority 24
Exhibit "A" The Property
Exhibit "B" Manner of Property Use
Attachment "A"
Attachment "B"
Attachment "C"
Attachment "D
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DRAFT
REVOCABLE LICENSE AGREEMENT
This revocable license agreement ("Agreement") is entered this day of
2005, (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) "City Manager" is the City Manager for the City of Miami.
b) "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.
c) "Director" shall mean the Director of the Department of Economic Development for
the City of Miami.
d) "Effective Date" shall be April 1, 2005.
e) "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 Superfund 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.
f) "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 12 of this Agreement.
g) "Permitted Uses" means Licensee shall occupy and use the Property primarily for
water recreational and educational opportunities as more particularly described in
Section 4.
h) "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".
i) "Property" shall mean the City -owned real property and improvements including the
building of approximately 1.96 acres located at 3601 Rickenbacker Causeway,
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Miami, Florida, as more particularly described in Exhibit "A" attached hereto and
made a part hereof.
j) "City -sponsored Event" shall mean an event sponsored by the City on the Property.
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, sailing,
kayaking, water safety programs, swimming, scuba/snorkeling, group and individual instruction,
lectures, clinics, classes, camps, receptions and conferences, meetings and social events, together
with associated ancillary uses, and for no other purpose whatsoever (the "Permitted Use"). The
use of jet skis or similar watercraft is specifically prohibited. Youth residents of the City of
Miami shall not be required to obtain a membership in order to participate in the swimming
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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 City Manager 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 City Manager, which consent may be conditioned or withheld in the City Manager's sole
discretion.
The sale, distribution and/or consumption of alcoholic beverages at the Property is
prohibited unless specifically authorized in writing by the City Manager in connection with a
Special Event. Notwithstanding the above, Licensee is authorized to serve alcoholic beverages
at Licensee's Special Events 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.
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 City Manager, which approval may be conditioned or withheld in his sole
discretion. Licensee's agreements with Program Operators shall include a provision that
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.
6. Manner of Property Use.
Licensee's use of the Property is nonexclusive and Licensee acknowledges that other
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users may use of 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. Unless this agreement is revoked or
terminated as provided in this Agreement, this Agreement shall commence upon the Effective
Date and shall expire September 30, 2005.
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
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.
Licensee may cancel this Agreement at any time with thirty (30) days prior written notice
to the City.
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 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 default under this Agreement, and
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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. 2nd Avenue,
6th Floor, Finance Department, 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, included but not limited to, security,
equipment, and insurance during its operating hours.
12. 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 applicable State of Florida taxes (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 License, 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 including, but not limited to, pay telephones,
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vending machines, and entertainment devices both for cash and on credit,
rendered in or upon the Property;
f) all revenue received by Licensee 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, banquets, tournaments, receptions and parties
held on or initiated from the Property;
g) all grants, subsidies, rebates, credits or similar benefits received from any federal,
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
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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 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. If there is any underpayment of
Percentage Fees, Licensee shall pay the City the amount of the deficiency within thirty (30) days
of the City receipt of the Additional Percentage Fee payment. If the Additional Percentage Fee
is not paid after thirty (30) days, Licensee shall be charged a late payment fee in accordance with
Section 15 until the underpayment amount is paid in full.
13. Financials.
Within ninety (90) days after the end of September 30, 2005, Licensee shall deliver or
cause to be delivered to the City of Miami's Director, Department of Economic Development,
whose address is 444 S.W. 2nd Avenue, 3rd Floor, Miami, FL 33130, a compilation financial
statement for the Fiscal Year which includes the gross revenues of Licensee and the Program
Operators. 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 compilation financial statement
and provided Licensee and the Program Operator has commenced and diligently pursued the
completion of the compilation, Licensee and the Program Operator may request from the
Director a thirty (30) day extension to complete the compilation 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, and expenses of Licensee and the Program Operator for the period
indicated therein.
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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 Property.
Copies requested by the City shall be furnished to the City at no cost.
14. 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 constituteadditional 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.
15. Late Payments.
Licensee hereby acknowledges that late payment by the Licensee to the City of the use
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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 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. Payment of
such interest shall not excuse or cure any default by Licensee under this Agreement.
16. Security Deposit.
Simultaneously with the execution of this Agreement, the Licensee shall deposit with
City the sum of One Thousand Two Hundred Dollars and 00/100 ($1,200.00) (the "Security") as
guarantee for the full and faithful performance by Licensee of all obligations of Licensee under
this Agreement or in connection with this Agreement. If Licensee is in violation beyond any
applicable notice or cure period, the City may use, apply or retain all or any part of the Security
for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but
did not pay, (ii) any sum expended by City on Licensee's behalf in accordance with the
provisions of this Agreement, or (iii) any sum which City may expend or be required to expend
as a result of Licensee's violation. Should the City use, apply or retain all or any part of the
Security, Licensee shall reimburse the amount used, applied or retained within thirty (30) days of
the City's application of the Security. 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.
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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 Property 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.
17. 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 default under this Agreement.
18. 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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19. 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.
20. 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
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within thirty (30) days after the date Licensee has notice of the filing of a lien or 2) Licensee
does not in good faith proceed to contest the lien by appropriate proceedings within the thirty
(30) day period, then Licensee shall be in default of the Agreement.
21. 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.
22. 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
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employees, does hereby release from any legal liability the City, its officers, agents and
employees, from any and all claims for injury, death or property damage resulting from
Licensee's use of the Property.
23. No Claim to Assets or Rights 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.
24. 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 Charter and Code of the City. Licensee and/or its authorized agents shall also
comply with reasonable directives of the City Manager.
25. 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.
26. 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,
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omission, default or negligence (whether active or passive) of Licensee or its employees, 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,
default 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.
27. Insurance.
Licensee, at its sole cost, shall obtain and maintain in full force and effect at all times
throughout the period of this Agreement, the following insurance coverage:
A. Commercial General liability insurance on a Comprehensive General liability
coverage form, or its equivalent, including premises, operations and contractual coverage's
against all claims, demands or actions for bodily injury, personal injury, death or property
damage occurring in or about the Property with such limits as may be reasonably requested by
the City from time to time but not less than $1,000,000 per occurrence combined single limit for
bodily injury and property damage. General Liability shall also include assault and battery and
child molestation. 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.
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C. Worker's Compensation in the form and amounts required by State law.
D. "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.
E. 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.
F. The policy or policies of insurance required shall be so written that the policy or
policies may not be canceled or materially changed without thirty (30) days advance written
notice to the City. Said notice should be delivered to the City of Miami, Department of Risk
Management, 444 SW 2 Avenue, 9th Floor, Miami, Florida 33130, with copy to City of Miami,
Department of Economic Development, 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 Department of Economic Development 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 "X" 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, which indicates 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
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
16
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.
28. 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 issuance of a notice to proceed, the Licensee
shall contact the Risk Management Department at (305) 416-1700 to schedule the inspection(s).
29. 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.
30. City Access To Property.
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.
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
17
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, tenants 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.
31. 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.
32. 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.
33. No Discrimination in Hiring.
In the performance of this Agreement or any extension thereof, Licensee and/or its
authorized agents shall not discriminate against any employee or applicant for employment
because of sex, age, race, color, religion, ancestry or national origin. Licensee and/or its
authorized agents will take affirmative action to insure that minority applicants are employed and
18
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.
34. Conflict of Interest.
Licensee is aware of the conflict of interest laws of the City (Miami City Code Chapter 2,
Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of
Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with
the terms of said laws and any future amendments thereto.
Licensee 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.
35. 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.
36. 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
19
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:
With a copy to:
City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
City Attorney
City of Miami
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
Department of Economic Development
City of Miami
444 SW 2nd Avenue, 3rd Floor
Miami, Florida 33130
If to Licensee:
Swim Gym Aquatics, Inc.
Attention: Alan Strauss, President
9800 Southwest 71 st Avenue
Miami, Florida 33156
37. 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
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
20
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.
38. 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.
39. 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
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.
21
40. Surrender Of Property..
Upon the expiration of this Agreement or in the event of cancellation pursuant to
revocation, "Cancellation By Request Of Licensee" 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.
41. 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
any hazardous waste or substances and that it will not conduct any activity at the Property or
City -owned property in violation of any applicable Environmental Laws.
42. Invalidity.
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
22
same shall remain in full force and effect.
43. 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.
44. 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.
45. 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.
46. 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.
47. 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.
48. No Partnership.
Nothing contained herein shall make, or be construed to make any party a principal,
23
agent, partner or joint venturer of the other.
49. Amendments.
No alterations, amendments or modifications hereof shall be valid unless executed by an
instrument in writing by the parties with the same formality as this Agreement. Neither this
Agreement, nor any term hereof, can be changed, modified, or abandoned, in whole or in part,
except by instrument in writing, and no subsequent oral agreement shall have any validity
whatsoever.
50. Miscellaneous.
Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
51. 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.
52. 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.
53. Authority.
Each of the parties hereto acknowledges it is duly authorized to enter into this Agreement
24
and that the signatories below are duly authorized to execute this Agreement in their respective
behalf.
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:
LICENSEE:
Swim Gym Aquatics, Inc. a for profit
corporation under the laws of the State of
Florida
By: By:
Signature Signature
Print Name Print Name
By:
Signature
Print Name
25
(Corporate Seal)
ATTEST:
Priscilla A. Thompson
City Clerk
CITY OF MIAMI,
a municipal corporation of the
State of Florida
Joe Arriola
City Manager
APPROVED AS TO INSURANCE REQUIREMENTS:
Dania Carrillo, Director
Department of Risk Management
APPROVED AS TO FORM AND CORRECTNESS:
Jorge L. Fernandez
City Attorney
EXHIBIT "A"
VIRGINIA KEY
LEASE AREA NO. 4 (REVISED)
LEGAL DESCRIPTION
Commence at the southeast corner of Section 17, Township 54
South, Range 42 East, Dade County, Florida; thence along the
south line of said Section 17 N 89° 56' 49.5" W 1709.52 feet
to its intersection with a line parallel with and 660 feet
northeasterly of the center line of Rickenbacker Causeway;
thence along said line N 45° 22' 07" W 1954.40 feet to the
point of intersection with the northwesterly property line
of that area deeded by the City of Miami to the
International Oceanographic Foundation; said point also
being the Point of Beginning of the hereinafter described
tract; thence along said northwesterly property line S 44°
37' 53" W 263 feet; thence N 45° 22' 07" W 90 feet; thence N
44° 37' 53" E 63 feet; thence N 45° 22' 07" W 45 feet to its
intersection with the southeasterly property line of that
200 by 200 feet easement conveyed by DADE COUNTY to the
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY; thence along
said southeasterly Property line N 44° 37' 53" E 200 feet to
its intersection with a line parallel with and 660 feet
northeasterly of the center line of Rickenbacker Causeway;
thence along said line S 45° 22' 07" E 135 feet to the Point
of Beginning.
Containing 32,670.square feet or 0.75 acres, more or less.
SUBJECT TO the following restrictions: TWO easements for
public utility and access purposes, described as follows:
(1) The Northeasterly 30 feet thereof.
(2) A strip of land 10 feet wide lying 5 feet on each
side of the following described line:
March 12, 1981
Page 1 of 3
Beginning at a point on the southeasterly property line
of proposed LEASE AREA NO. 4 S 44° 37' 53" W along said
line and 43 feet from the Point of Beginning of said
LEASE AREA No. 4; thence N 45° 22' 07" W 35 feet;
thence S 44° 37' 53" W 220 feet to its intersection
with southwesterly property line of proposed lease area
and there terminating.
For information and further identification, see attached map
File No. Mic. 44-106-A.
* For purposes of Section 2. of this Agreement, the above
referenced LEASE AREA NO. 4 along the northwesterly property
line is hereby modified to include approximately 52,830
square feet of fenced -in area for a total of 1.96 acres,
more or less.
March 12, 1981
Page 2 of 3
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Page 3 of 3
EXHIBIT B
1. Definitions
A. "Department" shall mean the City of Miami Department of Economic
Development
B. "Property Users" shall mean the following entities:
Miami Overseas Chinese Association ("Dragonboats")
Miami Rowing and Watersports Center, Inc. ("MRWC")
Swim Gym Aquatics, Inc. ("Swim Gym")
2. Services and Use Areas
A. Basic Services. Licensee hereby acknowledges that the following
are the Basic Services provided by each Property User currently authorized to
operate at the Property:
i. Dragonboats
• Provides dragonboat paddling activities weekends from
approximately 9:00 AM - 2:00 PM
ii. MRWC
Provides masters and similar rowing and paddling activities
weekdays from approximately 5:00 AM — 8:00 AM and from
approximately 5 30 PM 7 30 PM d
P Y tardy, 'xc�lri
approximately
■ Provides outrigger canoe paddling outside the basin
Wednesdays from approximately 5:30 PM — 7:30 PM and
Saturdays from 8:00 AM — 1 1 :00 AM.
• Provides youth rowing including use of weight room during
the months of September to June on weekdays from approximately
3:30 PM — 7:30 PM and on Saturdays from 8:00 AM — 12:00 PM.
• Provides youth rowing for the months of June and July on
weekdays from approximately 8:00 AM — 11:00 AM. Swim Gym,
MRWC and the Department shall review this program's operations
every two weeks to ensure they remain compatible and that strict
supervision is provided as set forth herein. MRWC shall schedule
the start dates of its youth rowing during June and July so as not to
conflict with the start dates of Swim Gym's summer camp during
the same months. The Department shall have the right to make
programmatic changes in the event Swim Gym's summer camp
and MRWC youth program develop operational conflicts which
could include, but is not limited to, restructuring hours of
operation, requiring additional supervision or canceling the
program. MRWC shall hold harmless Swim Gym and its officials,
3/14/2005 1
EXHIBIT B
employees, patrons and guests (collectively "Swim Gym
Indemnitees") from and against all loss, costs, damages, claims,
expenses (including attorney's fees) or Iiabilities (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 the joint
operation of the youth rowing and Swim Gym summer camp in the
basin, regardless of whether it is, or is alleged to be, caused in
whole or part (whether joint, concurrent or contributing) by any
act, omission, default or negligence (whether active or passive) of
Swim Gym Indemnitees, or any of them.
iii. Swim Gym
■ Provides a summer camp program including aftercare
during the months of June and July, weekdays from
approximately 9:00 AM — 5:30 PM.
■ Provides after camp water skiing during the months of June
and July, weekdays from approximately 3:00 PM -- 5:30
PM.
■ Provides adult swimming classes and Learn to Swim
program during the months of August and September
B. Additional Services
Each Property User 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 Property User's
License Agreement with the City and which Additional Service is offered on a
routine or continuing basis, ie. not a one-time event.
C. Special Events
The Department shall have the sole authority and responsibility for
authorizing Special Events at the Property including the collection of fees in
connection therewith and establishing permittee liability insurance requirements,
to utilize the Property for a Special Event. Any inquiries to the Property User for a
Special Event should be referred to the Department. The Department shall
consult with the Property Users for the purpose of informing them of the
requested Special Event and obtaining their input. The Department, in its sole
discretion, may issue a permit for the requested Special Event. In the event the
City issues a permit, the City shall have the sole responsibility to clean the
Property and repair any damages resulting from the Special Event, or cause same
to be cleaned and repaired.
For purposes of this Agreement, the term "Special Events" shall mean
activities at the Property, which exceed the scope of the regular program
3/ 1 4/2005 2
EXHIBIT B
activities, which are conducted at the Property. If a Property User elects to have a
Special Event, it shall, at its sole cost and expense, obtain the prior written
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 or cleanup
services related to the Special Event.
D. Use Areas
i. Each Property User 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 Property User shall
have the right to use other portions of the Property not specifically
identified below subject to its availability and for the limited purpose of
providing its Permitted Use as defined in its respective License Agreement
with the City.
• Dragonboats shall have the right to store four (4)
dragonboats on the ground level of the boathouse in the area depicted in
Attachment A.
■ 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.
• 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..
• Dragonboats shall have the right to use other areas of the
Property subject to availability.
■ MRWC shall have the right to store its rowing and paddling
vessels within the remainder of the boathouse.
• 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.
• MRWC shall have the right to use the maintenance/repair
area as depicted in Attachment B.
• MRWC shall have the right to locate one storage trailer in
the area depicted in Attachment B which trailer shall be shared with
Dragonboats for the storage of equipment.
3/14/2005 3
EXHIBIT B
• MRWC shall ensure that it launches its vessels during the
months of June and July at times not in conflict with Swim Gym who will
be launching vessels and rotating activities on the hour and each half hour.
• MRWC shall limit its weekday rowing activities during the
months of June and July to the area depicted in Attachment D.
Notwithstanding same, MRWC shall have the right to traverse the basin
via rowing from the Property to the designated rowing area.
• MRWC shall provide strict supervision of its program
participants and shall repair, at its sole cost, any damage caused by
MRWC, its officers, employees, participants, invitees and guests.
• MRWC shall have the right to utilize the Property to
conduct its annual regatta on April 9th which shall include set-up and
dismantling time on the day before and day after.
■ Dragonboats and MRWC shall keep the aisles within the
boathouse substantially cleared during June and July to provide space for
children enrolled in summer camp in the event of rain.
• Swim Gym shall have the right to use the swimming pool
throughout the Term.
• Swim Gym shall have the right to use the kitchen, meeting
room, boatyard, and exterior play areas as depicted in Attachments B and
C during the period of June and July, 2005. Notwithstanding same, Swim
Gym may enter the Property during the Term for the purpose of showing
the premises, employee training and meetings, 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 minimize
interference to other programming at the Property.
■ Swim Gym shall have the right to use the weight room and
aisles of the boathouse weekdays during June and July, 2005.
• Swim Gym shall have the right to use 50% of the office
throughout the Term and MRWC shall have the right to use the other 50%
of the office throughout the Term as depicted in Attachment C.
• Swim Gym shall have the right to use the reception area
during the months of June and July. MRWC and Swim Gym shall share
the reception area during the months of April, May, August and
September.
• Swim Gym shall have the right to conduct bay activities
including, but not limited to, water skiing, swimming, and water polo
during the months of June and July.
• Swim Gym shall coordinate all their motorized vessel
activities in the bay so as not to conflict with the rowing and paddling
programs of MRWC and Dragonboats set forth forth above.
3/14/2005 4
EXHIBIT B
• Swim Gym shall have the right to place a storage cabinet
approximately 4' width x 4' depth x 6' height in the weight room and
additional refrigeration equipment in the kitchen area.
• Swim Gym shall have the right to place lockers for its
employees use in the area outside the weight room during the Term.
• Swim Gym shall provide strict supervision of its program
participants and shall repair, at its sole cost, any damage caused by Swim
Gym, its officers, employees, participants, invitees and guests.
• Swim Gym shall have the right to use the meeting room
and such other areas of the Property as may be necessary on May 7`h and
14`h and June 2"', 3rd and 4t , 2005 in connection with training and
employee orientation and preparation in connection with its summer camp
program.
• Swim Gym shall have the right to use such areas of the
Marine Stadium parking lot not being utilized by others, at no additional
cost, for parking on the first day of each camp session during the months
of June and July.
• All Property Users shall work cooperatively to schedule
and provide a program of activities for Inner City Watersports Camp
Week, at their respective sole cost, during the week of August 1 through 5,
2005. The City will provide transportation for the kids.
• The City of Miami shall have 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 minimize any interference with approved programs of the
respective Property Users.
E. General Meetings and Events
All Property Users shall have the right throughout the Term to use the
meeting room in connection with its Permitted Use, subject to its availability.
MRWC shall maintain the calendar for said room and all bookings shall be made
through MRWC. MRWC shall not charge other Property Users for use of the
meeting room. Each Property User shall clean the 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. MRWC's failure to timely respond and cooperate in booking
requests shall result in the revocation of its privilege to maintain the calendar and
to use the meeting room for its own purposes as determined by the Department in
its sole discretion.
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.
a) The Licensee, at its sole cost and expense, shall:
3/14/2005 5
EXHIBIT B
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;
b) The Licensee, at its sole cost and expense, shall be responsible for
scheduling all its activities conducted in the Property in accordance with this
Agreement.
c) The Licensee shall, at its sole cost and expense, 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
In consideration of the shared use of the Property by the Property Users, the
Property Users agree and acknowledge that the expenses for the repair and maintenance
of the Property and improvements thereon during the Term shall be procured and paid for
as follows:
A. MRWC, at its sole cost, shall provide:
All routine maintenance and repairs to nonstructural portions of the
building, plumbing, electrical, heating, and air conditioning
systems and equipment, all doors, floor coverings, interior walls,
ceilings, decoration (e.g., carpeting, painting, wall coverings,
drapes and other window 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 Property User, its employees, agents,
customers, licensees, or invitees in or about the Property, in which
3/14/2005 6
EXHIBIT B
case the respective Property User shall, at its sole cost and
expense, cause the maintenance or repair to be done in a timely
manner;
ii. All services for the lawn and periodic removal of any rubbish or
obstructions from the Property throughout the Term;
iii. all minor repairs such as, but not limited to, light bulb replacement
or ballast replacement throughout the Term;
iv. janitorial services including the provision of supplies and minor
plumbing repairs including repair of clogged sinks and toilets, for
the months of April, May, August and September, 2005;
v. garbage removal services for the months of April, May, August
and September, 2005;
vi. electric and water utilities for the months of April, May, August
and September, 2005. Notwithstanding the above, in the event a
billing cycle commences after the 15th of the month, then MRWC
shall pay the bills for the months of April, May, June and
September.
vii. MRWC shall remove the curtains from the meeting room each
week so that the curtains are not up Monday through Friday,
during Swim Gym summer camp hours during the months of June
and July.
3/14/2005 7
EXHIBIT B
B. Swim Gym, at its sole cost, shall provide:
i. janitorial services including the provision of supplies and minor
plumbing repairs including repair of clogged sinks and toilets for
the months of June and July, 2005
ii. 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 swimming 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.
C. Swim Gym, at its sole cost, shall pay to MRWC upon receipt of the actual
bill from MRWC the following:
i. garbage removal services for the months of June and July, 2005.
ii. electric and water utilities for the months of June and July, 2005
Notwithstanding the above, in the event a billing cycle commences
after June 15`h, then Swim Gym shall pay to MRWC upon receipt
of the actual bill from MRWC the cost of said service for the
months of July and August, 2005.
D. Dragonboats agrees to remit to MRWC on the first day of each month that
they occupy the Property $ l 00 as its contribution towards the maintenance
and repairs to the Property.
E. In the event a repair is required to the air conditioning, MRWC shall be
the party responsible for procuring the repair and MRWC and Swim Gym
shall share the cost of said repair on a 50/50 basis. Swim Gym shall remit
its share of the bill to MRWC within two days of receipt of a bill from the
a/c repair company.
F. In the event Swim Gym provides Additional Services at the Property
wherein their usage of the Property is more than fifteen (15) days in any
given calendar month, Swim Gym shall remit to MRWC upon receipt of a
bill from MRWC the following: (i) the difference between a base amount
of $700 per month and the actual electric bill; and (ii) the difference
between a base amount of $600 per month and the actual water bill.
G. Prior to the start of Swim Gym's summer camp, MRWC, 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
3/14/2005 8
EXHIBIT B
camp use and the parties shall conduct a walk-thru of the property to
ensure all repairs have been made.
H. Swim Gym shall remove all arts and crafts from the meeting room by the
close of its day each Friday and clean the premises including the removal
of any tape, putty or other form of adhesive used to display the art.
In the event the MRWC license agreement is cancelled for any reason
during the Term, the expenses set forth above to be paid by MRWC shall
become the responsibility of Swim Gym. In the event the Swim Gym
license agreement is cancelled for any reason during the Term, the
expenses set forth to be paid by Swim Gym shall become the
responsibility of MRWC, except for swimming pool maintenance and
cleaning which shall become the responsibility of the City. In the event
the Dragonboat license agreement is cancelled for any reason during the
Term, MRWC shall no longer be entitled to any contribution to
maintenance.
J. The Property Users and the Department shall meet once a month to
discuss and resolve any outstanding issues and review programming site
requirements. MRWC shall present at this meeting a calendar for the
current month and upcoming month of activities booked in the meeting
room. The Department shall have the final decision in the resolution of
any disputes or conflicts between the parties.
3/14/2005 9
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