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HomeMy WebLinkAboutExhibit 2REVOCABLE LICENSE AGREEMENT This Revocable License Agreement (the "Agreement") is made this day of 2006, between the City of Miami (the "City") a municipal corporation of the State of Florida and AfterLife Services, Inc. dlb/a The Atlantis Reef Project, a corporation organized under the laws of the State of Florida (the "Licensee"). WHEREAS, the City is the owner of the property located at 3501 Rickenbacker Causeway a/k/a Marine Stadium (the "Property"); and WHEREAS, Licensee has expressed interest in using a portion of the parking lot at the Property for a construction staging area to pour and assemble concrete slabs to be put on a barge and dropped out at sea; and WHEREAS, the City and Licensee desire and intend to enter into a Revocable License Agreement; and 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. Purpose. The City is the owner of real property and improvements thereon located at 3501 Rickenbacker Causeway, Miami -Dade County, Florida (the "Property"). The City has determined that approximately 10,000 square feet of the parking lot at the Property (the "Area"), which is depicted in Exhibit "A" attached hereto and made a part hereof, is not needed at this time by any of the City's offices or departments. Licensee has received all necessary environmental permits from the relevant local, state and federal agencies to complete his artificial reef project and is requesting to use the Area as a construction staging to pour, mold and create and store concrete slabs of approximately 20' x 20' in size, molds, and other ancillary equipment (the "Permitted Use"). Licensee is authorized to occupy and use the Area, as well as the non-exclusive use from time to time of the submerged land immediately abutting the Area, for the Permitted Use under the conditions hereinafter set forth, including the responsibilities set forth in Exhibit "B". Licensee may request to increase the Area, not to exceed 20,000 square feet, only upon written request to the City Manager which request must be submitted at least thirty (30) days in advance. Any use of the Area not authorized under the Permitted Use, or any written request to increase the Area, must receive the prior written consent of the City Manager, which consent may be withheld or conditioned for any or no reason, including, but not limited to additional financial consideration. 2. Occupancy and Use Period. This Agreement shall commence as of the date upon which the City Manager executes this Agreement (the "Effective Date"). It is a revocable Agreement. This Agreement may be terminated in the following manner: (a) Cancellation by Licensee; or (h) Revocation by the City. 3. Duty to Secure Premises In the case of a pending Hurricane Watch to the regional Miami area, Licensee must secure all equipment capable of being moved by hurricane winds that are on or about the 2 premises, including but not limited to, cranes, barges, molds, concrete slabs, and other ancillary equipment. 4. Interest Conferred By This Agreement. Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Area solely for the limited purpose of the Permitted Use and no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease and the rights of Licensee hereunder are not those of a tenant but are a mere personal privilege to do certain acts of a temporary character and to otherwise use the Area subject to the terms of this Agreement. No leasehold interest in the Area is conferred upon Licensee under the provisions hereof and Licensee does not and shall not claim at any time any leasehold estate or ownership interest in the Area by virtue of this Agreement or its use of the Area hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Area by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions, or alterations to the Area even if such improvements, construction, repairs, partitions, or alterations are authorized by the City. 5. Use Fee. In consideration of this Agreement, Licensee agrees to pay to the City a Monthly Use Fee in the amount of Four Thousand Dollars ($4,000.00), plus Florida State Use Tax, if applicable, which shall be paid in advance and in full on the first day of each month, without notice or demand (the "Use Fee"). Licensee's obligation to pay the monthly Use Fee shall begin on the Effective Date and shall remain an obligation of Licensee until completely satisfied. Payments shall be made payable to the "City of Miami" and shall be mailed to the "City of Miami, Finance Department, 444 S.W. 2nd Avenue, 6th Floor, Miami, Florida 33130", or such other address as may be designated from time to time. In the event the Effective Date does not fall on the first day of the month, the Use Fee will be prorated on a daily basis for that month. Any future expansion of the Area authorized by the City Manager as specified in Paragraph 1 will increase the Use Fee on a prorated basis of $4.80 per square foot. 6. Late Fee and interest. 3 In the event the City does not receive any installment of the Use Fee within five (5) days of the date in which it was due, Licensee shall pay to City a late charge in an amount equal to ten percent (10%) of the amount due. Such late fee shall constitute additional fees due and payable to the City by Licensee at the time of payment of the use fee. Acceptance of such late charge by the City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. Any amount not paid to the City within fifteen (15) days after the date on which such amount is due shall bear interest at the rate of 12% per annum from its due date until paid. Payment of such interest shall not excuse or cure any violation by the Licensee. 7. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule: Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. The Returned Check Fee shall constitute additional fees due and payable to the City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by the City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 8. Guarantee Deposit Simultaneously with the execution of this Agreement, the Licensee shall deposit with the City the sum of Twelve Thousand and 00/100 Dollars ($12,000) (the "Guarantee") as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this 4 Agreement or in connection with this Agreement. If Licensee is in violation of the terms of this Agreement, the City may use, apply or retain all or any part of the Guarantee for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by the City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum which the City may expend or be required to expend as a result of Licensee's violation. The use, application or retention of the Guarantee or any portion thereof by the City shall not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. At any time or tirnes when the City has made any such application of all or any part of the Guarantee, 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 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 (or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect to the Guarantee. Licensee shall not be entitled to receive any interest on the Guarantee. Any future expansion of the Area resulting in an increase to the Use Fee will result in a prorated increase in the Guarantee Deposit. 9. Adjustment to Use Fee The Use Fee shall be increased every 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 (12) months thereafter (the "Anniversary Date"), by five percent (5%). 10. Utilities Licensee shall pay for all utilities and services, including but not limited to, electricity, water, storm water fees, gas, telephone, garbage and sewage disposal used by Licensee during its occupancy of the Area, as well as all costs for installation of any necessary lines and equipment. Licensee, at its sole cost, shall install all utilities required for its use, install separate utility 5 meters, and shall be billed directly by the applicable utility company for such services. In the event that the City is billed for any utility or service that is a result of Licensee's use of the Area, the Licensee shall reimburse such amount to the City within five (5) calendar days of notification of the City's receipt of said bill. 11. Condition of the Area. Licensee accepts the Area "as is", in its present condition and state of repair and without any representation by or on behalf of the City, and agrees that the City shall, under no circumstances, be liable for any latent, patent or other defects in the Area. Licensee, at its sole cost, shall maintain the Area in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. Licensee shall be responsible for all repairs to the Area required or caused by Licensee's use of any part thereof. Licensee agrees to make all changes necessary to the Area at Licensee's sole cost and expense in order to comply with all City, County, State and Federal code requirements for Licensee's use or occupancy thereof. 12. Alterations, Additions or Replacements. Licensee is authorized and hereby required to install a temporary fence within the Area, at its sole cost and expense. Licensee shall be solely responsible for applying and acquiring all necessary permits for the installation of the fencing. Upon termination of this Agreement, Licensee at its sole cost and expense is responsible for the removal of the temporary fence and for restoring the Area to its original condition. Except in the event of an emergency, Licensee shall not make any repair or alteration required or permitted to be performed by Licensee unless and until Licensee shall have caused plans and specifications therefore to be prepared, at Licensee's sole expense, by an architect or other duly qualified person and shall have obtained City Manager's approval, which approval may be conditioned or withheld for any or no reason whatsoever. 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 6 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 the City of such work. All alterations must comply with all statutes, laws, ordinances and regulations of the United States, State of Florida, Miami -Dade County, the City of Miami and any other agency that may have jurisdiction over the Area as they presently exist and as they may be amended hereafter. By the installation of a fence or any other alteration, addition or replacement the City shall not be excluded from the Area. 13. Violations, Liens and Security Interests. Licensee, at its sole expense and with due diligence and dispatch, shall secure the cancellation, discharge, or bond off in the manner permitted by law, all notices of violations arising from, or otherwise connected with, Licensee's alterations or improvements, use, occupancy, or operations in the Area which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors, subcontractors, and material men for all work and labor done at Licensee's request. Should any lien, claim, or encumbrance be asserted or filed, Licensee shall bond against or discharge the same regardless of validity, within ten (l0) calendar days of Licensee's receipt of notice of the filing of said lien, claim, or encumbrance. In the event Licensee fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim and Licensee shall pay the City upon demand any amounts paid out by the City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. Licensee further agrees to hold the City harmless from and to indemnify the City against any and all claims, demands and expenses, including attorney's fees, of any contractor, subcontractor, material man, laborer or any other third person with whom Licensee has contracted or otherwise is found liable, in respect to the Area. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of the City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any 7 contractor, subcontractor, material man or supplier against any part of the Area or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other agreements involving the Area shall provide for the waiver of any lien rights in the Area and provide that the contracting party agrees to be bound by such provision and include the waiver provision in any sub agreement. 14. City Access to Arca The City and its authorized representative(s) shall at all times have access to the Area. The City shall have access to and entry into the Area at any time to (a) inspect the Area, (b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, Licensee not having cured such matter within ten (10) calendar days of such notice, (c) to assure Licensee's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules and regulations, (d) to show the Area, to prospective purchasers or lessees or licensees, and (e) for other purposes as may be deemed necessary by the City; provided, however, that the City shall make a diligent effort to provide at least 24-hours advance notice and Licensee shall have the right to have one or more of its representatives or employees present during the time of any such entry. The City shall not be liable for any loss, cost, or damage to the Licensee by reason of the exercise by the City of the right of entry described herein for the purposes listed above. The making of periodic inspection or the failure to do so shall not operate to impose upon the City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 15. Indemnification and Hold Harmless Licensee shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "lndemnitees") 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") 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 8 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 lndemnitees, 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 harnnless the lndemnitees, 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 and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Area. 16. Hazardous Materials The Licensee and its contractor shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders, administrative actions and administrative orders ("Hazardous Materials Laws"), including, without limitation, any Hazardous Material Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances, under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The Licensee shall, at its sole cost and expense, procure, maintain in effect, and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Area required for the Licensee's use, or storage of, any Hazardous Materials in or about the Area in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon 9 termination or expiration of this Agreement, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Area by the Licensee or at the Licensee's direction, to be removed from the Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this Article to prohibit the Licensee from operating in the Area for the uses described in the Section of this Agreement entitled "Purpose". The Licensee may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. 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 following insurance language: A. Commercial General liability insurance on a Comprehensive General liability coverage form, or its equivalent, including premises, operations and contractual coverage's against all claims, demands or actions for bodily injury, personal injury, death or property damage occurring in or about the Area with such limits as may be reasonably requested by the City from time to time but not less than $1,000,000 per occurrence combined single limit for bodily injury and property damage. The City of Miami shall be named as Additional Insured on the policy or policies of insurance. B. Automobile Liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this Agreement. The policy or policies of insurance shall contain such limits as may be reasonably requested by the City from time to time but not less than One Million Dollars ($1,000,000.00) for bodily injury and property damage. The City of Miami shall be named as additional insured on the policy or policies of insurance. C. Worker's Compensation in the forms and amounts required by State law, if applicable. D. The City of Miami, Division of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in wilting to Licensee. The 10 Licensee shall require UTEC Constructors Corporation to provide any other insurance or security reasonably required by the City. E. The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to the City. Said notice should be delivered to the City of Miami, Division of Risk Management, 444 SW 2 Avenue, 9th Floor, Miami, Florida 33130, with copy to the City of Miami, Department of Public Facilities, 444 SW 2nd Avenue, 3rd Floor, Miami, Florida 33130, or such other address that may be designated from time to time. F. A current Evidence and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Department of Public Facilities at the commencement of the term of this Agreement and a new Evidence and Policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications as to management and financial strength: the company should be rated "A" as to management, and no less than class "V" as to financial strength, in accordance with the latest edition of Best's Key Rating Guide, or the company holds a valid Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and is a member of the Florida Guarantee Fund. Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required does not constitute a waiver of the Licensee's contractor, Afterlife Services, Inc. d/b/a Atlantis Reef'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 Tenant 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. Tenant's failure to procure insurance shall in no way release Tenant from its obligations and responsibilities as provided herein. The City's Division of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Tenant. The Tenant shall provide any other insurance or security reasonably required by the City 11 18. Safety Licensee will allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations, and ordinances. Licensee shall have no recourse against the City, its agents, or representatives from the occurrence, non- occurrence, or result of such inspection(s). Upon occupancy of the Area, Licensee shall contact the Risk Management Department at (305) 416-1700 to schedule the inspection(s). 19. American with Disabilities Act Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of utilizing the Area including Titles I and II of the ADA (regarding 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. 20. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, and/or equipment belonging to or rented by Licensee, its officers, agents, employees, contractors, subcontractors, invitees or patrons occurring in or about the Area that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Area, or from the breakage, leakage, obstruction or other defects of the pipes, wires, appliances, plumbing, air conditioning or lighting fixtures of the Area, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Area or any person whomsoever whether such damage or injury results from conditions arising upon the Area or from other sources. Licensee indemnifies the City its officers, agents and employees from and against any and all such claims even if the claims, costs, liabilities, 12 suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, or officials. Licensee further acknowledges that as lawful consideration for being granted the privilege to utilize and occupy the Area, Licensee, on behalf of himself, his agents, invitees or patrons, employees, contractors, and subcontractors, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Area. Licensee assumes all risk of loss resulting from the use of the Area. 21. Taxes and Fees. Licensee shall pay before any fine, penalty, interest or cost is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Area, or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Area by Licensee, including, but not limited to, ad valorem taxes, fire fees, and parking surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify the City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred percent (100%) of the contested tax together with all interest, costs and expenses, including reasonable attorneys' fees, expected to be incurred. 22. Cancellation by Licensee or City. Licensee or the City may cancel this Agreement at any time by giving thirty (30) days written notice to the non -cancelling party prior to the effective date of the cancellation. 23. This Revocable License Agreement is Revocable At -Will. This Agreement extended to the Licensee is revocable at will by the City Manager and without the consent of the Licensee. 24. Notices. 13 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 City Manager 3500 Pan American Drive Miami, FL 33133 WITH A COPY TO City of Miami Director, Department of Public Facilities 444 SW 2nd Avenue, Suite 325 Miami, FL 33130 WITH A COPY TO City of Miami City Attorney 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130 LICENSEE Afterlife Service, Inc. 4101 Ravenswood Road, Suite 307 Fort Lauderdale, FL 33312 25. Advertising. Licensee shall not permit any signs, decoration, or advertising matter to be placed upon the exterior of the Area without having first obtained the approval of the Director of the Department of Public Facilities or his/her designee, which approval may be withheld for any or no reason, at his sole discretion. Licensee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this Agreement, Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Area. If any part of the Area is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of 14 written notice from the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Area an appropriate sign indicating the City's has issued this Agreement. 26. Ownership of Improvements. As of the Effective Date and throughout the use period, title to the Area and all permanent improvements thereon shall be vested in City. Furthermore, title to all Alterations made in or to the Area, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. 27. Surrender of Area. In either event of cancellation pursuant to "Cancellation By Licensee" or "This Revocable License Agreement is Revocable at Will", Licensee shall peacefully surrender the Area broom clean and in good condition and repair together with all alterations, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, Licensee shall promptly remove all of its personal property, including temporary fencing, all construction materials, all equipment, and Licensee -shall repair any damage to the Area caused thereby. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay to the City the full cost of such repairs within five (5) calendar days of receipt of an invoice indicating the cost of such required repairs. At the City's option, the City may require Licensee, at Licensee's sole cost and expense, to restore the Area to a condition acceptable to the City. In the event Licensee fails to remove its personal property and equipment from the Area within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without 15 liability, may remove and/or dispose of same as the City sees fit, all at Licensee's sole cost and expense. 28. Severability and Savings Clause. It is the express intent of the parties that this Agreement constitutes a license and not a lease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than a license, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. With regard to those provisions which do not affect the parties intent for this Agreement constitute a license, should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such 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. 29. No Assignment or Transfer. The Licensee may not assign or transfer this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement. 30. Nondiscrimination. Licensee shall not discriminate as to race, color, religion, sex, national origin, age, disability, or marital status in connection with its occupancy and/or use of the Area and improvements thereon. 16 31. Affirmative Action. Licensee shall have in place an Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, the disabled and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, Licensee shall submit a Statement of Assurance indicating that their operation complies with all relevant Civil Rights laws and regulations. 32. Minority/Women Business Utilization. Licensee shall make every good faith effort to purchase/contract fifty-one percent (51 %) of its annual goods and services requirements from Hispanic, Black and Women businesses/professionals registered/certified with the City Office of Minority/Women Business Affairs. The City will make such lists available to the Licensee at the time of the issuance of the Agreement and the City's Office of Minority/Women Business Affairs will routinely provide updates. 33. Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Licensee entering into the subject transaction. 34. Non -waiver of Default. 17 Any failure by the City at any time or from time to time to enforce and require the strict keeping and performance of any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City from insisting on the strict keeping and performance of such terms or conditions at any later time. No waiver of any right hereunder shall be effective unless in writing and signed by the City. 35. 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. 36. Compliance with All Applicable Laws. The Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local laws, ordinances and regulations is a condition of this Agreement, and the Licensee shall comply therewith as the same presently exist and as they may be amended hereafter. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other rules, which would require the application of the laws of another jurisdiction. Venue for any legal proceeding shall be in Miami -Dade County. 37. 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. 38. Captions. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 18 39. Interpretation. This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 40. Entire Agreement. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement is of no force or effect. 41. 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. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. Licensee 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. 19 42. 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. 43. 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. 44. No Partnership. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venturer of the other. 45. 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. 20 1N WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Priscilla A. Thompson City Clerk Joe Arriola City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: LeeAnn Brehm, Director Jorge L. Fernandez Risk Management Department City Attorney WITNESS: LICENSEE: By: By: Signature Signature — C.E.O Print Name Print Name Signature Print Name 21