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HomeMy WebLinkAboutExhibit 1REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO WINDMOOR PROJECT, LLC FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT ORANGE BOWL STADIUM PARKING LOT NWI MIAMI, FLORIDA TABLE OF CONTENTS 1. Recitals 1 2. Definitions 2 3. Purpose 2 4. Interest Conferred By This Agreement 3 5. Occupancy And Use Period. 3 6. Use Fee 4 7. Late Fee 5 8. Returned Check Fee. 5 9. Guarantee Deposit 6 10. Adjustment To Use Fee and Per Diem Fee 6 11. Services and Utilities. 7 12. Condition Of The Property. 8 13. Alterations, Additions Or Replacements. 8 14. Violations, Liens And Security Interests. 9 15. City Access To Facility 10 16. Indemnification And Hold Harmless. 11 17. Insurance. i2 18. No Liability. 12 19. Safety. 13 20. Taxes and Fees 13 21. Cancellation By Request Of Either Of The Parties Without Cause 13 22. Termination By City Manager For Cause 14 23. Notices. 14 24. Advertising 15 25. Hazardous Materials. 15 26. Licenses, Authorizations and Permits 16 27. Compliance With All Laws Applicable. 16 28. Ownership Of Improvements 16 29. Surrender Of Area 17 30. Severability. 17 31. Invalidity. 18 32. No Assignment Or Transfer. 18 33. Public Records. 18 34. Conflict of Interest. 19 35. Americans With Disability Act 19 36. Nondiscrimination 19 37. Amendments And Modifications 20 38. Attorney(sY Fees. 20 39. Litigation 20 40. Waiver Of Jury Trial. 20 41. Waiver 21 42. Time of Essence. 21 43. No Interpretation Against Draftsmen 21 i 44. Further Acts, 21 45. Third Party Beneficiary 22 46. No Partnership, 22 47, Headings. 22 48. Authority. 22 49. Entire Agreement. 22 ii 1 REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is made this day of 2006 between the City of Miami (the "City") a municipal corporation of the State of Florida and Windmoor Project, LLC, a Florida limited liability company, (the "Licensee"). WHEREAS, this revocable license 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, listed permitted uses, and does not permit anything further. NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties hereby agree as follows: 1. Recitals. A. The foregoing recitals are hereby incorporated and made a part of this Agreement. RLAdraft3cln 2. Definitions. A. "Area" shall mean the Miami Orange Bowl Memorial Parking Lot NW1, as depicted in Exhibit "A" attached hereto and made a part hereof. B. "City Manager" is the City Manager for the City of Miami. C. "Effective Date" shall mean the date that this Agreement is executed by the City Manager. D, "Hazardous Material 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. "Permitted Uses" shall mean the parking of up to Eighty (80) vehicles during the Use Period. F. "Property" shall mean the City -owned real property and improvements located at 1501 NW 3 Street, Miami, Florida, commonly referred to as the Orange Bowl property. G. "Stadium Manager" shall mean the manager of the Orange Bowl Stadium. 3. Purpose. The City is the owner of the Property. The City has determined that the Area is not needed during the Use Period by any of the City's offices or departments. The City RLA draft 3 cln has expressed its desire to assist the Licensee in accomplishing its purpose and in furtherance thereof authorizes the Licensee to occupy and use the Area for the Permitted Use, under the conditions hereinafter set forth. The use of the Area is strictly limited to the Permitted Use and is not to be used for any other purpose whatsoever. Any use of the Area not authorized under Permitted Use must receive the prior written consent of the City Manager or his designee, which consent may be withheld for any or no reason, including, but not limited to additional financial consideration. 4. Interest Conferred By This Agreement. This Agreement confers no exclusive possession of the Area. The Licensee cannot exclude the City from the Property. This Agreement solely authorizes Licensee to the temporary use of the Area 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 Area and to use the Area, subject to the terms of this Agreement. The City retains dominion, possession and control of the Area. Therefore, no lease interest in the Area 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 Area hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Area by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions, or alterations to the Area which may be authorized by the City. 5. Occupancy And Use Period. This Agreement shall commence on the Effective Date and shall continue for a period of thirty (30) months, Monday through Saturday, from 7:00 AM to 6:00 PM, unless sooner terminated as provided herein. FZLA draft3 nln Notwithstanding the above, Licensee understands and agrees that the City has contractual obligations with the University of Miami and the Area will not be available on days when the University of Miami hosts events at the Orange Bowl Stadium. The City will provide Licensee with a copy of the University of Miami schedule as it becomes available. Additionally, from time to time the City may enter into Orange Bowl Stadium Use Agreements with other parties wherein the Area may not be available for use by Licensee. In such event, the City shall provide Licensee ten (10) days advance notice of such dates and times the Area may not be available. Licensee agrees to remove all vehicles from the Area a day prior to each scheduled University of Miami or other event which makes the Area . unavailable for Licensee's use. the event Licensee fails to remove all vehicles, the City reserves the right to have any remaining vehicles towed at Licensee's sole cost and expense. Licensee shall not be entitled to any reduction in the Use Fee except if the Area is unavailable for Licensee's use for more than four days in any calendar month. For each day Licensee loses use of the Area in excess of four days, Licensee shall be entitled to a credit against the next accruing monthly Use Fee of Two Hundred Forty Dollars and 00/100 ($240.00) per day lost. 6. Use Fee. Commencing on the Effective Date of this Agreement and on the first day of each month thereafter throughout the term of this Agreement, Licensee shall pay to City Five Thousand Seven Hundred Sixty Dollars and 00/100 ($5,760.00) plus State of Florida Use Tax, if applicable. In the event the Effective Date does not fall on the first day of the month, the monthly Use Fee for the first month will be prorated based on the days, remaining in that month. In the event the Stadium Manager finds that the Licensee is parking more vehicles than that permitted under the Permitted Use, then, in addition to all other remedies of City for breach of this Agreement, including the right to tow away the vehicle, Licensee shall pay an additional Three Dollars ($3.00) per car, per day ("Per Diem Fee") for each additional vehicle, which additional fee shall be paid within ten (10) days of receipt of an invoice for same. RLA draft 3r.Lt Payments shall be made payable to "City of Miami" and shall be mailed or hand delivered to 1501 NW 3 Street, Miami, Florida 33125, or such other address as may be designated from time to time from the City Manager or his/her designee. 7. Late Fee. In the event any installment of the Use Fee, or any other payment that may be due to the City pursuant to the terms of this Agreement, is not received by the City within five days of its due date, Licensee shall pay to City a late charge in an amount equal to five percent (5%) of the respective fee. Such late fee shall constitute additional fees due and payable to City by Licensee upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 8. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule; Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. The Returned Check Fee shall constitute additional fees due and payable, to City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. -RrA atn1 Tin 5 9. Guarantee Deposit. Simultaneously with the execution of this Agreement, the Licensee shall deposit with City the sum of Five Thousand Seven Hundred Sixty Dollars and 00/100 ($5,760.00) (the "Guarantee Deposit") as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement or in connection with this Agreement. If Licensee is in violation (as provided in paragraph 22 herein) beyond any applicable notice or cure period, the City may use, apply or retain all or any part of the Guarantee Deposit 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. The use, application or retention of the Guarantee Deposit or any portion thereof by City shall not prevent City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which City may be entitled otherwise. At any time or times when City has made any such application of all or any part of the Guarantee Deposit, the Licensee shall deposit the sum or sums equal to the amounts so applied by City within ten (10) days of written notice by the City. Provided Licensee is not in violation of this Agreement, the Guarantee Deposit or balance thereof, as the case may be, shall be returned to Licensee upon the termination of this Agreement or upon any later date after which Licensee has vacated the Area in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Guarantee Deposit (or balance thereof) to the Licensee, City shall be completely relieved of liability with respect to the Guarantee Deposit. Licensee shall not be entitled to receive any interest on the Guarantee Deposit. 10. Adjustment To Use Fee and Per Diem Fee. Commencing twelve months from the Effective Date, or on the first day of the following month if the Effective Date is not on the first of the month, and every twelve months thereafter (the "Anniversary Date(s)"), Licensee agrees that the monthly Use Fee and Per Diem Fee shall each be increased by five (5%) percent of the monthly Use Fee -MA-draft3 cln and Per Diem Fee respectively, in effect for the immediately preceding Agreement Year. Nothing in this paragraph shall be construed to grant Licensee the right to use the Area for a term greater than on a month to month basis. 11. Services and Utilities. A. Licensee's responsibilities. Except as otherwise specifically provided, Licensee, at its sole cost and expense, shall pay for all utilities, except those specifically set forth in paragraph B below to be provided by City, which may include, but is not limited to, electricity, water, stormwater fees, gas, telephone, garbage and sewage disposal used by Licensee during its occupancy of the Area. Licensee, at its sole cost, shall provide general grounds clean-up of the Area. Licensee agrees to provide any and all security it deems necessary to protect its operations and equipment. B. City's responsibilities. City, at its sole cost, shall pay electric for the existing parking lot lights. The City reserves the right to interrupt, curtail or suspend the provision of any utility service provided by it, 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 City desirable or necessary to be made or due to difficulty in obtaining supplies or labor or for any other cause beyond the reasonable control of the City. The work of such repairs, alterations or improvements shall be prosecuted with reasonable diligence. The City shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility service to Licensee or for any limitation of supply resulting from governmental orders or directives. Licensee shall not claim any damages by reason of the City's or other individual's interruption, curtailment or suspension of a utility service, nor shall the Revocable License or any of Licensee's obligations hereunder be affected or reduced thereby. RLA draft 3 can 12. Condition Of The Property. Licensee accepts the Area "as is", in its present condition and state of repair and without any representation by or on behalf of City, and agrees that City shall, under no circumstances, be liable for any latent, patent or other defects in the Area. Licensee, at its sole cost, shall maintain the Area in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. Licensee shall be responsible for all repairs to the Area required or caused by Licensee's use of part thereof. Licensee agrees to make all changes necessary to the Area at Licensee's sole cost and expense in order to comply with all Federal, City, County and State code requirements for Licensee's occupancy thereof. 13. 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 Manager or his/her designee 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. 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 any and all costs associated with any alterations including, but not limited to, design, construction, installation and permitting costs. All alterations to the Area, whether or not by or at the expense of the Licensee, shall, unless otherwise provided by written agreement of the parties hereto, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify City of such work. RLA draft 3 cln 8 All alterations must be in compliance with all statutes, laws, ordinances and regulations of the State of Florida, Miami -Dade County, City of Miami and any other agency that may have jurisdiction over the Area as they presently exist and as they may be amended hereafter. In the event of an emergency, Licensee shall reasonably proceed to perform such repair work and shall immediately notify the City Manager or his/her designee of such work. 14. Violations, Liens And Security Interests. The Licensee shall not suffer or permit any statutory, laborers, material person, or mechanics' liens to be filed against the title to the Property, nor against any Alteration by reason of work, labor, services, or materials supplied to the Licensee or anyone having a right to possession of the Property. 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 material man for the performance of any labor or the furnishing of any materials for any specific Alteration, or repair of or to the Property nor as giving the Licensee the right, power or authority 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 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 fifteen (15) days after the date the Licensee acquires knowledge of its filing. If the Licensee shall fail to discharge a mechanics' lien within that period, then in addition to any other right or remedy available to the City, the City may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court of bonding or other acceptable form of security in lieu thereof. Additionally, the City may compel the prosecution of an action for the foreclosure of the mechanics' lien by the lienor and pay the amount of the judgment, if any, in favor of the lienor (with interest, costs and allowances), with the understanding that all amounts paid by the City shall constitute additional payments due and payable under this Agreement and shall be repaid to the City by the Licensee immediately upon rendition of any invoice or bill by the City. The Licensee shall not be _ Ln4raa_3Gan 9 required to pay or discharge any statutory, laborers, supplies, material persons or mechanics' lien so long as (i) the Licensee shall in good faith proceed to contest the lien by appropriate proceedings, (ii) the Licensee shall have given notice in writing to the City of its intention to contest the validity of the lien, and (iii) the Licensee shall fitrnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred ten percent of the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attomeys' fees, to be incurred in connection therewith. Licensee further agrees to hold City harmless from, and to indemnify the City against, any and all claims, demands and expenses, including reasonable attorney's fees, by reason of any claims of any contractor, subcontractor, materialman, laborer or any other third person with whom Licensee has contracted or otherwise is found liable for, in respect to the Area. 15. City Access To Facility. City and its authorized representative(s) shall have at all times access to the Area and the Property. City will maintain a complete set of keys to the Area and the Property. Licensee, at its sole cost and expense, may duplicate or change key locks to the Area but not until first receiving written approval from the Stadium Manager for such work. In the event Licensee changes key locks as approved by the Stadium Manager, Licensee, at its sole cost and expense, must also provide to 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 Area and the Property at any time to (a) inspect the Area and 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, inclusive of the Area, to prospective purchasers or tenants, and (e) for other purposes as may be deemed necessary by the City Manager in the furtherance of the City's corporate purpose; provided, however, that City shall make a diligent effort to provide at least 24-hours advance notice PIA draft 3 cln 10 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 City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 16. Indemnification And Hold Harmless. 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 attomey's fees) or liabilities (collectively referred to as "Liabilities") 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 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. Licensee further acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Area, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents RLA draft 3 cln 11 and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Area. 17. 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 insurance as set forth in Exhibit "B" attached hereto and made a part hereof. 18. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the vehicles, property, improvements, fixtures and/or equipment belonging to or rented by Licensee, its officers, agents, employees, invitees or patrons occurring in or about the Area that may be stolen, towed, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Area, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Area, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Property or any person whomsoever whether such damage or injury results from conditions arising upon the Area or upon other portions of the Property or from other sources. 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 Area, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Area. RLAdraft 3 tin 12 19. 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) 416-1800 to schedule the inspection(s). 20. Taxes and Fees 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 company reasonably acceptable to the City Manager, or his designee, or other security reasonably satisfactory to the City Manager, or his designee, 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. 21. Cancellation By Request Of Either Of The Parties Without Cause. Either party may cancel this Agreement at any time by giving thirty (30) days written notice to the non -canceling party prior to the effective date of the cancellation. RLA draft 3 _chi _13 22. Termination By City Manager For Cause. If, at the sole and complete discretion of the City Manager, Licensee in any manner violates the restrictions and conditions of this Agreement, then, and in the event, after ten (10) days written notice given to Licensee by the City Manager within which to cease such violation or correct such deficiencies, and upon failure of Licensee to do so after such written notice within said ten (10) day period, this Agreement shall be automatically canceled without the need for further action by the City. 23. Notices. All notices or other communications which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to City and Licensee at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier: CITY OF MIAMI City of Miami Office of the City Manager 444 SW 2 Avenue, 10th Floor Miami, FL 33130 WITH A COPY TO Director City of Miami Department of Public Facilities 444 SW 2 Avenue, Suite 325 Miami, FL 33130 Stadium Manager City of Miami Orange Bowl 1501 NW 3 Street Miami, FL 33125 City Attorney RLA draft 3 cln 14 LICENSEE Alan S. Lester, Project Manager Windmoor Project, LLC 2600 SW 3 Avenue, Suite 700 Miami, FL 33129 City of Miami 444 SW 2 Avenue, 9th Floor Miami, FL 33130 24. Advertising. Licensee shall not permit any signs or advertising matter to be placed either in the interior or upon the exterior of the Area or the Property without having first obtained the approval of the Stadium Manager or his designee, which approval may be conditioned or withheld for any or no reason, at his sole discretion. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Area or Property an appropriate sign indicating City's having issued this Agreement. 25. Hazardous Materials. The Licensee shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders and administrative actions and orders relating to hazardous materials ("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances" (collectively "Hazardous Materials"), under any such laws, ordinances or regulations. The Licensee shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Area or required for the Licensee's use of any Hazardous Materials in or about the Area in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon cancellation or revocation of this Permit, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Area by the Licensee or at the Licensee's direction, to be removed from ----Iti:rA-draft 3 oin 15 the Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The Licensee may operate according to the the use or presence of Hazardous Materials is strictly custom of the industry so long as and in compliance with, all applicable and properly monitored according to, a h of the License shall governmental requirements. The requirements of this Paragraph survive the cancellation or revocation of this License. The City represents that whether under t of its knowledge there are no environmental violations, To the bee the Area; on federal, state, or local laws, existingresently existing To the be st of its knowledge there are no Hazardous Materials p on the Area. 26. Licenses, Authorizations and Permits' and maintain in full force and Licensee shall obtain, or cause to be obtained, 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. the cost of said applications and Licensee shall be responsible for paying obtaining said licenses, authorizations and permits. 27. Compliance With All Laws Applicable. Agreement and hereby acknowledges that Licensees strict Licensee accepts this Agi'e regulations is applicable federal, state and local laws, ordinances and rregu nss compliance with all app 1 therewith as the presently a condition of this Agreement, and Licensee shall comp Y exist and as they may be amended hereafter. This Agreement shall be construed and enforced according to the laws of the State of Florida. 28. Ownership Of Improvements. Effective Date and throughout the Use Period, all buildings and As of the Furthermore, title to all Alterations made improvements thereon shall be vested in City. 16 RLA draft 3 cln in or to the Area, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. 29. Surrender Of Area. In either event of cancellation pursuant to paragraph 21 or paragraph 22, or at the expiration of the time limited by the notice, Licensee shall peacefully surrender the Area broom clean and in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, Licensee shall promptly remove all its personal property, trade fixtures and equipment and Licensee shall repair any damage to the Area caused thereby. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. At City's option, City may require Licensee to restore the Area so that the Area shall be as it was on the Effective Date. In the event Licensee fails to remove its personal property, equipment and fixtures from the Area within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as City sees fit, all at Licensee's sole cost and expense. 30. Severability. It is the express intent of the parties that this Agreement constitutes a license and not a lease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent RLA draft 3 chi 17 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. 31. 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 same shall remain in full force and effect. 32. No Assignment Or Transfer. Licensee cannot assign or transfer its privilege of occupancy and use granted unto it by this Agreement. Any assignment, sale or disposition of this Agreement or any interest therein by Licensee shall result in the automatic termination of this Agreement without notice by the City Manager. 33. 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. RLA draft 3 cln 18 34. Conflict of Interest. Licensee is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2- 11.1 et. sect_) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. Licensee covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City. Licensee further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Licensee, its employees or associated persons, or entities must be disclosed in writing to the City. 35. 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. 36. Nondiscrimination. In the performance of this Agreement or any extension thereof, Licensee and/or its authorized agents shall not discriminate in connection with its occupancy and use of the Area and improvements thereon, or against any employee or applicant for employment because of sex, age, race, color, religion, marital status, 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, RLA draft 3 Gin - _ _19 upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. 37. Amendments And Modifications. No amendments or modifications to this Agreement shall be binding on either party unless in writing, approved as to form and correctness by the City Attorney, and signed by both parties. The City Manager is authorized to amend or modify this Agreement as needed. 38. Attorney(s)' Fees. In the event it becomes necessary for either party to institute legal proceedings to enforce the provisions of this Agreement, each party shall bear its own attorneys' fees through all trial and appellate levels. 39. 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. 40. Waiver Of Jury Trial. The parties hereby knowingly, irrevocable, voluntarily and intentionally waive respect of any action, proceeding or any right either may have to a trial by jury in res P 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. RLA draft 3 cln 20 41. 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. 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. 43. 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. 44. 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. RLA draft 3 cln 21 45. 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. 46. No Partnership. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venturer of the other. 47. Headings. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 48. Authority. Each of the parties hereto acknowledges it is duly authorized to enter into this Agreement and that the signatories below are duly authorized to execute this Agreement in their respective behalf. 49. Entire Agreement. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations or representations not expressly 'set forth in this Agreement are of no force or effect. This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties, and the parties covenant that this Agreement shall not be construed in favor of or against either of the parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. RLA draft 3 cin 22 ATTEST: corporation By: Priscilla A. Thompson City Clerk CITY OF MIAMI, a municipal of the State of Florida By: Joe Arriola City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: Dania Carrillo, Director Jorge L. Fernandez Department of Risk Management City Attorney WITNESS: By: By: LICENSEE: By: Signature Signature Print Name Signature Print Name RL,A draft 3 One 23 Print Name Date