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HomeMy WebLinkAboutExhibit 1REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO GARCIA BROTHERS WHOLESALE, INC. FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT 236 SW NORTH RIVER DRIVE MIAMI, FLORIDA Tv- ,9 # a s0/a-6 7 TABLE OF CONTENTS PAGE 1. Recitals 2 2. Definitions 2 3. Permitted Uses. 4 4. Manner of Property Use. 4 5. Additional Expenses. 5 6. Term. 5 7. Use Fee 5 8. Security Deposit. 7 9. Adjustment to Use Fee and Security 8 10. Annual and Other Submerged Lands Fees 8 11. Returned Check Fee. 9 12. Late Payments. 10 13. Utilities 10 14. Taxes. 11 15. Sales Records. 12 16. Licenses, Authorizations and Permits. 13 17. This Agreement Confers No Exclusive Possession of the Property. 13 18. This License Agreement is Not Assignable 14 19. Cancellation by Request of Either of the Parties Without Cause. 14 20. Termination for Cause... 14 21. Surrender Of Property. 15 22. Condition of the Property and Maintenance. 16 23. Improvements, Alterations, Additions, or Replacements 16 24. Ownership of Improvements 17 25. Mechanics' Liens 17 26. City Access To Property. , 18 27. Safety. 19 28. No Claim to Assets or Rights of Licensee. 20 29. Indemnification. 20 30. Insurance. 21 31. No Liability. 23 32. Notices. 24 33. Advertising. 25 34. Public Records. 26 35. Compliance With Laws 26 36. Conflict of Interest. 26 37. Nondiscrimination 27 38. No Discrimination in Hiring. 27 39. Americans With Disability Act 28 40. Compliance with Environmental Laws 28 41. Radon Gas. 28 42. Time of Essence. 28 43. Waiver 29 44. Litigation 29 45. Attorney(s)' Fees. 29 46. Waiver of Jury Trial. 29 47. Third Party Beneficiary 30 48. No Partnership. 30 49. Further Acts. 30 50. Amendments. 30 51. No Interpretation Against Draftsmen 31 52. Severability And Savings Clause. 31 ii 53. Invalidity. 31 54. Headings. 32 55. Entire Agreement. 32 56. Authority. 32 iii 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 Garcia Brothers Wholesale, Inc. ("Licensee"), a for profit corporation in good standing under the laws of the State of Florida. RECITALS WHEREAS, the City and Licensee ("the Parties") desire and intend to enter into a Revocable License Agreement for the use of 236 SW North River Drive, Miami, Florida; and WHEREAS, this Agreement is not assignable; and WHEREAS, this Agreement is revocable at -will by the City Manager and without the consent of the Licensee pursuant to the notice provisions of Sections 19 or 20 herein as applicable; 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 WHEREAS, the Parties jointly and voluntarily stipulate as to the accuracy of these recitals; 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. "Director" shall mean the Director of the Department of Economic Development for the City of Miami. c. "Effective Date" of this Agreement shall be the date that the Agreement has been fully executed by the Parties. d, "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. e. "Gross Receipts" shall mean all revenue received by the Licensee derived directly from business operations located on, consummated, initiated or concluded on or at the Property, including business made or performed by means of maritime vessels 2 or mechanical or other vending devices, whether such sales shall be credit or cash sales or otherwise. Gross Receipts shall be reduced by: (i) cash or credit refunds for returned merchandise provided said amounts had been previously included as part of Gross Receipts; (ii) amount of any sales or excise tax levied upon any sales, rentals and/or services rendered and payable to the appropriate governmental authority; (iii) exchanges of merchandise between different locations of Licensee; (iv) sales of non -inventory items such as fixtures and furniture; (v) gratuities paid to employees; and (vi) interest earned on Licensee's deposit accounts, earnings or profits on Licensee's investments, and similar passive or investment income of Licensee. f. "Percentage Fee" shall have the meaning ascribed to it in Section 7B. g. "Permitted Uses" means Licensee shall occupy and use the Property primarily for wholesale/retail fresh fish and seafood sales, a dockage facility, and ancillary associated uses. Only minor repairs and servicing of Licensee's boats shall be permitted on the Property. The Property shall not be used for the purpose of major maintenance or overhauling of boats or craft. Except for the refilling by a licensed company of propane fuel tanks for cooking purposes, there shall be no sale or dispensing of fuel on the Property. h. "Property" shall mean approximately 0.7 acres of upland property owned by the City located at 236 SW North River Drive, Miami, Florida, as more particularly described in Exhibit "A", plus the Submerged Lands Area as defined herein. i. Security" has the meaning ascribed to it in Section 12. "Submerged Lands Area" shall mean the State-owned submerged lands containing approximately 7,273.40 square feet, abutting the City -owned upland 3 portion of 236 SW North River Drive, Miami, Florida, as more particularly described in Exhibit "B." k. "Use Fee" shall have the meaning the greater of the Monthly Use Fee and Percentage Fee as set forth in Section 7A. 3. 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 for the Permitted Uses, as defined Section 2 hereof. 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 or his/her designee 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 or his/her designee, which consent may be conditioned or withheld in the sole discretion of the City Manager or his/her designee. The use of the Submerged Lands Area of the Property by Licensee shall be conditioned upon approval by the State of Florida Department of Environmental Protection (DEP) of a Temporary Use Agreement and/or Submerged Lands Lease to the City. The City shall promptly give notice to Licensee in the event the current Temporary Use Agreement of Submerged Lands Lease is terminated by DEP. 4. Manner of Property Use. Licensee's use of the Property is non-exclusive and Licensee acknowledges and agrees to abide by the terms and obligations as set forth in the services to be provided, manner of operation, use areas and maintenance and utility obligations, provided however, the City agrees 4 not to enter into another License Agreement or other similar Agreement on this property that would interfere with Licensee's ability to operate on the Property and/or the Submerged Lands Area so long as this License is in effect. The Licensee's use of the Submerged Lands Area of the Property shall be subject to any restrictions set forth by DEP for the use of said Property, as more particularly described in prospective Exhibits "C" and "D" attached hereto to be incorporated and made a part hereof. In the event DEP fails to issue an agreement for the use of the Submerged Lands Area, then either party shall have the right to terminate this Agreement pursuant to Section 19 herein, without liability or recourse. 5. 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 operations or related activities beyond those that are specifically set forth in this Agreement. 6. Term. This agreement is revocable -at -will by the City subject to the notice provisions of Sections 19 or 20 herein as applicable. Unless this agreement is revoked or terminated as provided in this Agreement, this Agreement shall commence upon the Effective Date. 7. Use Fee. a. Monthly Use Fee and Percentage Fee. In consideration of this Agreement, Licensee shall pay to the City the greater of a monthly use fee in the amount of Seven Thousand Dollars and 00/100 ($7,000.00) ("Monthly Use Fee") or three percent (3%) of the Licensee's monthly Gross Receipts ("Percentage Fee"), 5 plus State of Florida Use Tax, payable in the manner set forth in Subsection B below and adjusted in accordance with Section 9 herein for the use of the Property. b. Manner of Payment. 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, the Monthly Use Fee, plus State of Florida Use Tax, if applicable, for the license to use the Property. Thereafter, commencing with the first day of the third (3rd) month and on the first day of each month and every month thereafter during the term of this Agreement (and after termination or expiration thereof for such additional periods as may be necessary to comply with this section), Licensee shall provide the City's Finance Department a statement of its Gross Receipts signed by an officer of Licensee for the month commencing approximately sixty (60) days prior and shall pay to the City the amount by which the applicable Percentage Fee as provided in Subsection A hereinabove of the Gross Receipts for the month commencing approximately sixty (60) days prior, plus State of Florida Use Tax, if applicable, exceeds the Monthly Use Fee already paid. Payments of the Monthly Use Fee and Percentage Fee, as applicable 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 in writing from time to time from the City Manager or his/her authorized designee. c. Additional Consideration. As additional consideration for the right to use the Property, commencing on the Effective Date of this Agreement and on the first day of each month thereafter and continuing until the earlier of: (i) the termination of this License Agreement; or (ii) the date on which the additional consideration equals the amount of back fees the City may be required to pay to DEP. in connection with obtaining a Temporary Use Agreement or Submerged Lands Lease 6 Agreement for the use of the Submerged Lands Area, Licensee shall pay to City an additional One Thousand Dollars and 00/100 ($1,000.00) per month (the "Additional Consideration"), plus State of Florida Use Tax, if applicable. Said payment of Additional Consideration shall be remitted to the City at the same location as set forth in Subsection B above. 8. Security Deposit. The Licensee shall pay a deposit to the City in the sum of Fourteen Thousand Dollars and 00/100 ($14,000.00) (the "Security") in seven (7) installment payments as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement or in connection with this Agreement. The first installment payment of Three Thousand Five Hundred Dollars and 00/100 ($3,500.00) shall be made upon execution of this Agreement. The balance of Ten Thousand Five Hundred Dollars and 00/100 ($10,500.00) shall be paid in equal monthly installments of One Thousand Seven Hundred Fifty Dollars 00/100 ($1,750.00) commencing on the first day of the first month following the Effective Date and each month thereafter for a period of six months. The installment payments for the Security shall be made by separate checks and not included in the check for payment of the Use Fee. The checks shall be made payable to the City of Miami and sent to c/o Finance Director, 444 SW 2id Avenue, 6th Floor, Miami, Florida 33130, Attention: Collections. 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 7 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. 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. As this is a License Agreement, the Parties stipulate that Chapter 83, Florida Statutes, does not apply to the Security. 9. Adjustment to Use Fee and Security. 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 Use Fee and Security shall be increased by three percent (3%) of the Monthly Use 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 the Effective Date and each twelve months thereafter. On each Anniversary Date the Licensee shall remit payment to the City for the increased amount in Security. Nothing in this section shall be construed to grant Licensee the right to use or occupy the Property for a term greater than on a month -to -month basis. 10. Annual and Other Submerged Lands Fees. In addition to the Use Fee described in Section 7 herein, commencing upon the later of the Effective Date of this Agreement or the effective date of an agreement with the DEP for use 8 of the Submerged Lands Area, Licensee shall be obligated to pay an Annual Submerged Lands Fee as determined by the DEP for the use of the Submerged Lands Area of the Property. The Annual Submerged Lands Fee shall be paid to the City at the same location as the Use Fee and the City shall remit payment to DEP. Licensee shall remit the Annual Submerged Lands Fee to the City within five (5) business days of being billed by the City for the same. Licensee shall further be obligated to submit to the City for remittance to the DEP any and all documents required by DEP which may include, but is not limited to, disclosure of any income from wet slips for the Submerged Lands Area. Except as otherwise provided, the Annual Submerged Lands Fee shall be the greater of the base fee, the minimum annual fee or six percent of the annual rental value from wet slip rental area and shall include discounts, surcharges and other payments as provided in Florida Department of Environmental Protection, Administrative Rule 18-21.011(1)(b), as may be amended. The minimum annual fee and base fee shall be established and defined by DEP Administrative Rule 18-21.011(1)(b). These fees shall be subject to yearly consumer price index (CPI) increases by DEP. 11. 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 $00.01 - 50.00 $50.01 - 300.00 $300.01 - 800.00 OVER $800 Returned Check Fee $20.00 $30.00 $40.00 5% of the returned amount. Such Returned Check Fee shall constitute additional fees due and payable to the City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance 9 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. In the event the City must institute a civil suit to collect a returned check, the City shall be entitled to recover a reasonable attorney's fee as provided by Florida Statutes, 12. Late Payments. Licensee hereby acknowledges that late payment by the Licensee to the City of the Use 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 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 five percent (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, 13. Utilities. Licensee shall pay for all utilities and services, including but not limited to, electricity, water, storm water fees, gas, telephone, telecommunications, garbage and sewage disposal used by Licensee during its occupancy of the Property, as well as all costs for installation of any 10 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 Property, the Licensee shall reimburse such amount to the City within five (5) calendar days of notification of the City's receipt of said bill. The City, acting by and through its City Manager, 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 equipment serving the Property 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 Manager 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 goverrunental 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. 14. 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 "Assessment") 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. 11 In the event Licensee appeals an Assessment, Licensee shall immediately notify the City Manager or his/her authorized designee of its intention to appeal said Assessment and upon the request of the City Manager and his/her authorized designee 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 Manager or his/her authorized designee, in an amount sufficient to pay one hundred percent (100%) 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. 15. Sales Records. All records and accounts including invoices, sales slips (which will be serially numbered), bank statements or duplicate deposit slips, and all other supporting records, shall be available for inspection and audit by the City and its duly authorized agents or representatives during business hours, and shall be maintained in accordance with generally accepted accounting principles. The Licensee shall keep and preserve, or cause to be kept and preserved, said records for not less than thirty-six (36) months after the termination of this Agreement. For the same period of time, Licensee shall also retain copies of all sales and tax retums covering its operations at the Property Area, in its local office of operations, and any other governmental tax or other returns, which show the Licensee's reasonable sales therein, and shall, upon demand, deliver photographic copies thereof to the City at no cost. The Licensee will cooperate with the City's internal auditors and/or such other auditors designated by the City in order to facilitate the City's examination of records and accounts. If such examination of records and accounts shall disclose a liability for additional Use Fees in excess of the Use Fees theretofore paid by the Licensee for the period in question, the Licensee 12 shall promptly pay such additional Use Fees. If such examination of records and accounts shall disclose an overpayment of the Use Fees theretofore paid, the City shall promptly credit the excess to the Licensee. However, upon the cancellation or termination of this License Agreement, and provided Licensee is not in violation of this Agreement, if such overpayment has not been fully credited by the City, the City shall pay the Licensee the balance of the outstanding overpayment within thirty (30) days of such cancellation or termination. 16. 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 commercial activities. Licensee shall be responsible for paying the cost of said applications and obtaining said licenses, authorizations and permits. 17. This Agreement Confers No Exclusive Possession of the Property. This Agreement confers no exclusive possession of the Property, provided however, the City agrees not to enter into another License Agreement or any other similar Agreement on this Property that would interfere with Licensee's ability to operate for the Permitted Uses on the Property and/or the Submerged Lands Area so long as this License is in effect. 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 13 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 Manager or his/her designee. 18. This License Agreement is Not Assignable. Licensee shall not sell or 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 shall result in an immediate forfeiture of the rights of Licensee hereunder. 19. Cancellation by Request of Either of the Parties Without Cause. Either party may cancel this Agreement without cause, that is, for convenience, at any time, with thirty (30) days prior written notice to the non -cancelling party. This Agreement that is extended to the Licensee is revocable -at -will by the City, through its City Manager, without the consent of the Licensee, in accordance with this Agreement. 20. Termination for Cause. Licensee agrees 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 Manager may give it twenty (20) days written notice within which to cease such violation or correct such deficiencies. Upon Licensee's failure to do so, the City Manager may cancel this Agreement 14 upon giving ten (10) days written notice to the Licensee and thereafter the Agreement shall be deemed automatically canceled without the necessity 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. 21. Surrender Of Property. Upon the expiration of this Agreement or in the event of cancellation pursuant to revocation, "Cancellation By Request Of Either Parties" or "Automatic Termination", or at the expiration of the time limited by the notice, Licensee shall reasonably clean and peacefully surrender the Property 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 sun -ender, 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 the sole discretion of the City Manager or his/her authorized designee and without liability to the City, may remove and/or dispose of same as the City sees fit, all at Licensee's sole cost and expense. 15 22. 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. Licensee, at its sole cost, shall maintain the Property 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. Licensees shall be responsible for all repairs to the Property required or caused by Licensee's use of any part thereof. THE CITY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY FOR THE PROPERTY. Licensee agrees to make any changes necessary to the Property at Licensee's sole cost and expense in order to comply with all City, County and State code requirements for Licensee's occupancy thereof. 23. Improvements, Alterations, Additions, or Replacements As a further condition of the use of the Property, Licensee has agreed to make certain improvements to the Property as more particularly described in Exhibit "E" attached hereto ("Improvements") and shall implement such improvements according to the time -schedule provided therein. The Improvements are estimated to cost approximately $25,000.00. Licensee agrees to perform the Improvements, at its sole cost and expense, which improvements shall be donated to the City upon their respective completion. Upon completion of the Improvements, the paid invoices, receipts, canceled checks and other such documents shall be promptly submitted to the Director as evidence of having performed the work. Except in the event of an emergency, Licensee shall riot make any other additional repairs or alterations required or permitted to be performed by Licensee unless and until 16 Licensee shall have caused plans and specifications therefore to be prepared, at Licensee's sole expense, by an architect or other duly qualified person and shall have obtained the approval of the City Manager or his/her designee, 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. The improvements and 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 Property 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 Property. 24. Ownership of Improvements. As of the Effective Date and throughout the Term of this Agreement, all buildings and improvements thereon shall be vested in the City. Furthermore, title to the Improvements and any and all the Improvements and 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, 25. Mechanics' Liens. The Licensee shall not knowingly suffer or permit any mechanics liens to be filed 17 against the title to the Property by reason of work, labor, services or materials supplied to the Licensee or anyone having a right to possession of the Property as a result of an agreement with or without the consent of the Licensee. Nothing in this Agreement shall be construed as constituting the consent or request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Property nor as giving the Licensee the right, power or the City to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any mechanics' liens against the City 's interest in the Property if any mechanics lien shall at any time be filed against the Property, the Licensee shall cause it to be discharged of record within thirty (30) days after the date that it has notice of its filing. Licensee shall not be required to pay or discharge any mechanics' lien within the thirty (30) day period, so long as Licensee shall in good faith proceed to contest the lien by appropriate proceedings. It shall furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. If Licensee does not 1) cause a mechanics' lien to be discharged of record within thirty (30) days after the date Licensee has notice of the filing of a lien or 2) Licensee 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. 26. 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 18 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 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 or his/her authorized designee 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 inspections 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. 27. 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 to schedule the inspection(s). 19 28. 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. 29. Indemnification. Licensee shall indemnify, defend at its own cost and expense 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 Toss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, 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 Sections 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, provided however, that the indemnification obligations and releases in this Section do not apply to any matters arising as a result of or otherwise caused by the gross, wanton or willful negligence of the City or the unlawful acts or omissions of the City. 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 20 which the Licensee's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 30. 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, products and completed operations, personal and advertising injury and contractual liability coverages 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 and $2,000,000 aggregate single limit for bodily injury and property damage. The City shall be named as Additional Insured on the policy or policies of insurance. b. Automobile liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this Agreement. The policy or policies of insurance shall contain a combined single limit of at least $500,000 for bodily injury and property damage. The requirements of this provision will be waived upon submission of a written statement from Licensee that no automobiles are used to conduct business. c. Worker's Compensation in the form and amounts required by State law. d. "All Risk" special form coverage, including theft, windstorm and flood coverage, and insuring 100% replacement cost on the building and Licensee's improvements, including all its equipment, fixtures, furniture and all other 21 personal property in and about the property. e. Business Interruption Insurance, special form coverage, with limits not less than the Monthly Use Fee, loss of profits, remuneration and the debt service payments for the alterations or improvements during the full period of reconstruction following a Toss. f. 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. 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. h. 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 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 company or companies should be rated "A" as to management, and no less than class "V" as to g. 22 financial strength, in accordance with the latest edition of Best's Key Rating Guide, ar the company ar companies 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 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. 31. 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, 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 23 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 in accordance with the provisions of Section 29 herein. Licensee further acknowledges that as lawful consideration for being granted the right to utilize and occupy the Property, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Property. 32. Notices. All notices or other communications, which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by hand, telecopy, or registered mail addressed to the other party at the address indicated herein. Such notice shall be deemed given on the day on which hand delivered; faxed or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. If to City of Miami: 24 City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 With a copy to: If to Licensee: With a copy to: City Attomey City of Miami 444 SW 2"d Avenue Suite 945 Miami, Florida 33130 Director Department of Economic Development City of Miami 444 SW 2"d Avenue, 3rd Floor Miami, Florida 33130 Mr. Esteban Garcia c/o Garcia Brothers 398 N.W. North River Drive Miami, FL 33130 Jill Berman, Esq. Berman Rennert Vogel & Mandler, P.A. 100 Southeast Second Street, Suite 2900 Miami, FL 33131 33. 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 25 permitted hereunder from the Property. If any part of the Property is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Property an appropriate sign indicating City's having issued this Agreement. 34. Public Records. Licensee understands that the public shall have access, at all reasonable times, to City contracts and all documents, records and reports maintained and generated pursuant to this Agreement, pursuant 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. 35. 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. 36. 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 2-1 1.1 et. seq.) and of the 26 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. 37. 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. 38. 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 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. 27 39. 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. 40. 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, 41. 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. 42. 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. 28 43. 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. 44. 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. 45. Attorney(s)' Fees. In the event it becomes necessary to institute legal proceedings to enforce or interpret the provisions of this Agreement, each party shall bear its own attorneys' fees through all trial and appellate levels. 46. 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 29 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. 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, agent, partner or joint venturer of the other. 49. 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. 50. 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. The City Manager is hereby authorized to execute non -substantive amendrnents to this Agreement without the necessity of further action by the City Commission. 30 51. 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. 52. 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 Tight 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, section, 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, section, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, 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. 53. Invalidity. In the event that any non -material provision of this Agreement shall be held to be 31 invalid for any reason, such invalidity shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. 54. Headings. Title and section headings are for convenient reference and are not a part of this Agreement. 55. 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. 56. Authority. Each of the Parties hereto acknowledges it is duly authorized to enter into this Agreement and that the signatories below are duly authorized to execute this Agreement in their respective behalf. 32 1N 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: Garcia Brothers Wholesale, Inc. a for profit corporation, organized under the laws of the State of Florida. By: By: Corporate Secretary Signature of President Print Name Print Name of President Corporate Seal WITNESSED By: Signature By: Print Name Signature Print Name 33 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 LEGAL FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney 34