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HomeMy WebLinkAboutExhibitREVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO MIAMI ROWING AND WATERSPORTS CENTER, INC. FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT 3601 RICKENBACKER CAUSEWAY MIAMI, FLORIDA /tv /6' ;' TABLE OF CONTENTS PAGE 1. Recitals 1 2. Definitions 1 3. This Agreement Confers No Exclusive Possession of Property 3 4. Permitted Uses 3 5. Program Operators 4 6. Manner of Property Use 5 7. Term (with one year extension option) 5 8. Automatic Termination 5 9. Cancellation by request of either of the Parties without cause 5 10, This License Agreement is Not Assignable 6 11. Use Fee 6 12. Percentage Fee 6 13. Financials 8 14. Returned Check Fee 9 15. Late Payments 10 16. Security Deposit 10 17. Taxes 11 18. Condition of the Property and Maintenance 11 19. Alterations, Additions or Replacements 12 20. Mechanic's Lien 12 21. Licenses, Authorizations & Permits 13 22. No Liability 13 23. No Claim to Assets or Rights of Licensee 1•4 24. Compliance With Laws 14 25. Additional Expenses 14 26. Indemnification 14 27. Insurance 15 28. Safety 17 29. Americans With Disabilities Act 17 30. City Access To Property 17 31. Public Records 18 32. Nondiscrimination 18 33. No Discrimination in Hiring 19 34. Conflict of Interest 19 35. Waiver of Jury Trial 19 36. Notices 20 37. Advertising 21 38. Waiver 21 39. Ownership of Improvements 22 40. Surrender Of Property 22 41. Compliance with Environmental Laws 23 42. Invalidity 23 43. Time of Essence 23 44. No Interpretation Against Draftsmen 23 45. Further Acts 23 46. Litigation 23 47. Third Party Beneficiary 24 48. No Partnership 24 49. Amendments 24 50. Miscellaneous 24 51. Entire Agreement 24 52. Radon gas 24 53. Authority 25 Exhibit A: Exhibit B: Legal Description Manner of Property Use Attachment A Attachment B ii ra REVOCABLE LICENSE AGREEMENT This revocable license agreement ("Agreement") is entered this day of 2006, (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 Miami Rowing and Watersports Center, Inc. ("Licensee"), a nonprofit organization under the laws of the State of Florida. RECITALS WHEREAS, the City and Licensee desire and intend to enter into a revocable license agreement; and WHEREAS, this Agreement is not assignable; and WHEREAS, this Agreement is revocable at -will by the City and without the consent of the Licensee; and WHEREAS, this Agreement does not transfer an interest in real property including any leasehold interest in real property owned by the City; and WHEREAS, this Agreement does not confer a right to use any real property for any general purposes; and WHEREAS, this Agreement does not convey or transfer any right to exclude the City from any real property; and WHEREAS, this Agreement permits only certain, enumerated, specific and Iisted permitted uses and does not permit anything further; and NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties hereby agree as follows: 1. Recitals. The foregoing recitals are hereby incorporated and made a part of this Agreement. 2. Definitions. a) "Additional Percentage Fee" is 12% of Gross Revenues from Licensee's operations, which includes those operations by Program Operators that enter into agreements with Licensee to provide the activities outlined in Section 4 of this Agreement. b) "City Manager" is the City Manager for the City of Miami. c) "City -sponsored Event" shall mean an event sponsored by the City on the Property. d) "City's Use Fee" is the monthly fee that Licensee pays to the City, as the case may be, for the use of the Property. e) "Director" shall mean the Director of the Department of Parks and Recreation for the City of Miami. fl "Effective Date" shall be October 1, 2006. g) "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. h) "Permitted Uses" means Licensee shall occupy and use the Property primarily for water recreational and educational opportunities as more particularly described in Section 4. i) "Program Operators" shall be other entities that provide activities at the Property pursuant to an agreement with Licensee to provide activities and services as permitted pursuant to Section 4 entitled "Permitted Uses". The City shall not be included in the definition of "Program Operator". j) "Property" shall mean the approximately 4.2 acres of City -owned real property and improvements at 3601 Rickenbacker Causeway, Miami, Florida, as more particularly shown and described in the survey found in Exhibit "A" attached hereto and made a 2 part hereof. k) "Special Event" shall mean activities at the Property which exceed the scope of the regular program activities conducted at the Property and outlined in Section 4 and Exhibit B of this Agreement. 3. This Agreement Confers No Exclusive Possession of the Property. This Agreement confers no exclusive possession of the Property. The Licensee cannot exclude the City from the Property. This Agreement solely authorizes Licensee to the temporary use of the Property for the limited purposes set forth herein and for no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a Iease. The rights of Licensee hereunder are not those of a tenant, but are a mere personal privilege to do certain acts of a temporary character on the Property and to use the Property, subject to the terms of this Agreement. The City retains dominion, possession and control of the Property. Therefore, no lease interest in the Property is conferred upon Licensee under the provisions hereof. Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of this Agreement or its use of the Property hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions, or alterations to the Property which may be authorized by the City. 4. Permitted Uses. Subject to existing zoning and other governmental restrictions and the issuance of this Agreement, this Agreement authorizes the Licensee to occupy and use the Property primarily for public water recreational and educational activities, which activities may include rowing, paddling, group and individual instruction, lectures, clinics, classes, camps, together with associated ancillary uses, and for no other purpose whatsoever (the "Permitted Use"). Receptions, conferences, meetings, socials, and any other Special Events will be permitted via Parks Use permit only. The use of jet skis and motorized vessels is strictly prohibited (The only 3 exception is when a motorized vehicle (non -jet ski) is used as safety boat to accompany kayaks, rowing sculls, or sailboats that are part of these Permitted Uses). No other uses except those provided for in this Section are allowed. Youth (non -adult) residents of the City of Miami shall not be required to obtain a membership in order to participate in the swimming program and other programs. Licensee shall ensure that the Property and all of Licensee's activities thereon, or resulting from, in connection with or relating to Licensee's use of the Property, shall be available to all segments of the community including the physically disabled and financially disadvantaged. Licensee shall operate, manage, supervise and administer activities during its use of the Property as an independent contractor and not as an employee of the City. Licensee may request written consent from the Director 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 Director, which consent may be conditioned or withheld in the Director's sole discretion. The sale, distribution and/or consumption of alcoholic beverages at the Property is prohibited unless specifically authorized in writing in advance of the event by the Director in connection with a Special Event and provided that Licensee obtains all required permits, complies with all laws and codes, and provides insurance coverage for liquor liability in a form acceptable to the City and in an amount not less than $2,000,000 per occurrence. Licensee shall be authorized to operate concession sales subject to application and approval by the Director whose approval may be conditioned or withheld in his sole discretion; Concession sales may only be authorized during the specific days and hours the licensee operates its programs. S. Program Operators. Licensee shall be solely responsible for all of its activities during its use at the Property. The Licensee shall be allowed to enter into professional services agreements with Program Operators that wish to provide the activities set forth in Section 4, subject to obtaining the prior written approval of the Director, which approval may be conditioned or withheld in his sole discretion. Licensee's agreements with Program Operators shall include a provision that 4 Program Operators shall comply with the terms and conditions of this Agreement including, but not limited to, the requirement to pay the Percentage Fees in accordance with Section 12 herein. 6. Manner of Property Use. Licensee's use of the Property is nonexclusive and Licensee acknowledges that other users may use the Property and shall not conflict with other Property users. Licensee acknowledges and agrees to abide by the terms and obligations as set forth in Exhibit "B" attached hereto and made a part hereof, related to the services to be provided, manner of operation, use areas, and maintenance and utility obligations. 7. Term. This Agreement is revocable -at -will by the City. Unless this Agreement is revoked or terminated as provided in this Agreement, this Agreement shall commence upon the Effective Date and shall expire automatically September 30, 2007. This Agreement may be extended one- year to September 30, 2008 upon the mutual agreement of both parties. Licensee shall request such renewal in writing no later than ninety (90) days prior to the expiration. The City Manager is hereby authorized to exercise such renewal, which may be subject to additional consideration. 8. Automatic Termination Licensee, and its Program Operators, agree to abide by each and every term and condition of this Agreement. If Licensee violates the terms, restrictions or conditions of this Agreement, then the City may give it ten (10) days written notice within which to cease such violation or correct such deficiencies. Upon Licensee's failure to do so, this Agreement shall be automatically canceled without the need for further action by the City. Notwithstanding this provision or any other provision in this Agreement, this License extended to the Licensee is revocable -at -will by the City, through its City Manager, without the consent of the Licensee. 9. Cancellation by Request of Either of the Parties Without Cause. Either party may cancel this Agreement at any time with thirty (30) days prior written 5 notice to the non -cancelling party. 10. This License Agreement is Not Assignable. Licensee shall not sell, assign this Agreement, or any part thereof to any other party. The License granted by this Agreement is personal to the Licensee. Any assignment sale or transfer 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 violation under this Agreement, and shall result in an immediate forfeiture of the rights of Licensee hereunder. 11. Use Fee. Commencing on the Effective Date of this Agreement, and on the first day of each month thereafter during the term of the Agreement, Licensee shall pay to the City a monthly Use Fee of Two Hundred Fifty Dollars ($250.00), plus State of Florida State Use Tax, if applicable for the license to use the City's Property. The Use Fee shall be due each month without notice or demand. Payments shall be made payable to "City of Miami" and shall be mailed to 444 S.W. 2nd Avenue, 6th Floor, Finance Department, Miami, Florida 33130, or such other address as may be designated from time to time from the City Manager. Licensee shall be responsible for any cost associated with its programs operated on the Property, including but not limited to, security, equipment, and insurance during its operating hours. 12. Additional Percentage Fee. In addition to the payment of the Use Fee as provided for in Section 11, commencing on the Effective Date, Licensee and each Program Operator, if applicable, shall pay monthly to the City a fee in the amount of twelve percent (12%) of their respective Gross Revenues derived from their respective use of the Property, plus applicable State of Florida taxes (hereinafter "Additional Percentage Fee"). On or before the thirtieth (30th) day following the end of each month, Licensee shall remit its and the Program Operator's Additional Percentage Fees to the City. For purposes of this License, the term "Gross Revenues" shall include the following 6 revenue received by Licensee: a) all revenue from services, program fees and membership dues; b) all revenue derived from advertising and sponsorships conducted on the Property; c) all revenue from concession sales; d) all other receipts whatsoever of all business conducted in or from the Property; e) all revenue from sales and services generated on or from the Property; all revenue received by Licensee in connection with the use of the Property, any facility thereon, or any portion thereof for any period of time, including without limitation, special events, regattas, or tournaments, held on the Property, or at Marine Stadium; g) all grants, subsidies, rebates, credits or similar benefits received from any federal, state, regional or local body, agency, authority, department or organization which revenues are unrestricted or are to be used for general operating expenses. h) all donations and contributions received which revenues are unrestricted or are to be used for general operating expenses. No deduction shall be allowed for direct or indirect discounts, unless generally offered to employees or the public on a uniform basis. Gross Revenues shall not include the following: a) any amount of any sales, use or gross sales tax imposed by any federal, state or governmental authority directly on sales and collected from customers, provided that the amount is added to the selling price therein and paid by the Licensee to such governmental authority; b) collection of insurance proceeds; c) monies collected for events that are done for charities wherein the total amount collected is paid to the charitable sponsor or not -for -profit organizations; d) all gratuities paid to employees; e) any grants, subsidies, credits or similar benefits received from any federal, state, regional or local body, agency, authority, department or organization which revenues are restricted or for capital expenditures to the Property; 7 f) any donations or contributions which revenues are restricted for capital expenditures, as approved by the City, to the Property; Gross Revenues, whether for cash, credit, credit cards or otherwise, shall be recognized in the period the service was provided or sale took place. Payments received in advance are deferred and are recognized as revenue in the period the service is rendered or sale takes place. Grants shall be recorded as income during the period designated by the grants or when the Licensee has incurred expenditures in compliance with the restrictions of the grantor. If a sale is by credit card no deduction shall be allowed for any commission associated with such sale. Gross Revenues shall be reduced by the amount of any refund made upon any sale in or from the Property, provided said amounts had been previously included in "Gross Revenue," not to exceed the sum so previously included, where the merchandise sold is thereafter returned by the purchaser and accepted by the Licensee, and if such refund is in the form of a credit to customer, such credit shall be included in Gross Revenues when used. 13. Financials. Within ninety (90) days after the end of its fiscal year, Licensee shall deliver or cause to be delivered to the City of Miami's Director, Department of Public Facilities, whose address is 444 S.W. 2nd Avenue, 3rd Floor, Miami, FL 33130, a compilation financial statement for the Licensee's and Program Operators' fiscal year which includes the Licensee's and the Program Operator's gross revenues. Such financial statement shall be prepared by Licensee's accountant, employed respectively at Licensee's and the Program Operator's sole cost and expense. In the event, Licensee or a Program Operator is unable to timely submit the compilation financial statement and provided Licensee and the Program Operator has commenced and diligently pursued the completion of the compilation, Licensee and the Program Operator may request from the Director a thirty (30) day extension to complete the compilation which request shall not be unreasonably denied. Said accountant shall attest that such statement is prepared in accordance with generally accepted accounting principles and practices and represents the Gross Revenues, other revenues, if any, for the period indicated therein. Notwithstanding the above and during the Term described in Section 7 of this Agreement 8 and for a period expiring three (3) years after the expiration of the Term, at its option, the City may, at its sole cost and expense, audit Licensee and the Program Operator's business affairs, records, files, sales slips and sales tax records in connection with Licensee and the Program Operator's sales on, from or related to the Property for the period covered by any financial statement, report or record furnished to the City. Licensee and its Program Operators shall allow the City or auditors of the City to inspect all or any part of the source documents and records for the aforesaid monthly reports. Said inspection shall be conducted at the sole discretion of the City. Records shall be available Monday through Friday, inclusive, between the hours of 8:00 AM and 5:00 PM at the Licensee's address provided in Section 36 of this Agreement. Copies requested by the City shall be furnished to the City at no cost. 14. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to the City a returned check fee (the "Returned Check Fee") based on the following schedule: Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. Such Returned Check Fee shall constitute additional fees due and payable to the City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of such Returned Check Fee by the City shall not, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 15. Late Payments. Licensee hereby acknowledges that late payment by the Licensee to the City of the use fee, percentage fee and other sums due hereunder will cause the City to incur costs not 9 contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any installment of the use fee, percentage fee or any other sum due from Licensee shall not be received by the City within fifteen (15) days after the date on which such sum is due, Licensee shall pay to the City a late charge equal to 5% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the City will incur by reason of late payment by Licensee. Acceptance of such late charge by the City shall not constitute a waiver of the Licensee's violation 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 violation by Licensee under this Agreement. 16. Security Deposit. Simultaneously with the execution of this Agreement, the Licensee shall have deposited with City the sum of Seven Hundred Fifty Dollars and 00/100 ($750.00) (the "Security") as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement or in connection with this Agreement. If Licensee is in violation beyond any applicable notice or cure period, the City may use, apply or retain all or any part of the Security for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum which City may expend or be required to expend as a result of Licensee's violation. Should the City use, apply or retain all or any part of the Security, Licensee shall reimburse the amount used, applied or retained within thirty (30) days of the City's application of the Security. The use, application or retention of the Security or any portion thereof by the City shall not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. Provided Licensee is not in violation of this Agreement, the Security or balance thereof, 10 as the case may be, shall be returned to Licensee upon the termination of this Agreement or upon any later date after which Licensee has vacated the Property in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Security (or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect to the Security. Licensee shall not be entitled to receive any interest on the Security. 17. Taxes. Licensee shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Property [collectively Assessments], its proportionate share of use of the Property and/or against personal property of any kind, owned by or placed in, upon or about the Property by Licensee, including, but not limited to, ad valorem taxes, fire fees and parking surcharges. In the event Licensee appeals an Assessment, Licensee shall immediately notify the City of its intention to appeal said Assessment and shall furnish and keep in effect a surety bond of a responsible and substantial surety that is reasonably acceptable to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred percent of the contested Assessment with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. Licensee agrees to pay such Assessments either in lump sum or on an installment plan. Failure of the Licensee to pay any Assessment or any installment payment thereof shall constitute a violation under this Agreement. 18. Condition of the Property and Maintenance. Licensee accepts the Property "as is", in its present condition and state of repair condition and without any representation by or on behalf of the City, and agrees that the City shall, under no circumstances, be liable for any latent, patent or other defects in the Property. Licensee shall provide all maintenance to the Property in accordance with Exhibit "B", except roof and structural portions of the building. 11 19. Alterations,Additions or Replacements. Except in the event of an emergency, Licensee shall not make any repair without first receiving the written approval of the City Manager or his/her designee, which approval may be conditioned or withheld for any or no reason whatsoever, including a condition to pay additional fees if such alteration will affect the cost of services being provided by the City. If the City approves such request, no repair or alteration shall be commenced until plans and specifications therefore shall have been submitted to and approved by the City Manager or his/her designee. In the event of an emergency, Licensee shall reasonably proceed to perform such repair work and shall immediately notify the City of such work. 20. Mechanics' Liens. The Licensee shall not knowingly suffer or permit any mechanics liens to be filed against the title to the Property by reason of work, labor, services or materials supplied to the Licensee or anyone having a right to possession of the Property as a result of an agreement with or without the consent of the Licensee. Nothing in this Agreement shall be construed as constituting the consent or request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the famishing 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 12 does not in good faith proceed to contest the lien by appropriate proceedings within the thirty (30) day period, then Licensee shall be in violation of the Agreement. 21. Licenses, Authorizations and Permits. Licensee shall obtain, or cause to be obtained, and maintain in full force and effect throughout the term of this Agreement, at its sole expense, all licenses, authorizations and permits that are necessary for Licensee to conduct its public water recreational and educational activities. Licensee shall be responsible for paying the cost of said applications and obtaining said licenses, authorizations and permits. 22. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or rented by Licensee, the Program Operators, their officers, agents, employees, invitees or patrons occurring in or about the Property that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Property, or from the breakage, 'leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Property or any person whomsoever whether such damage or injury results from conditions arising upon the Property or upon other portions of the Property or from other sources. Licensee indemnifies the City its officers, agents and employees from and against any and all such claims even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, or officials. Licensee further acknowledges that as lawful consideration for being granted the right to utilize and occupy the Property, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and 13 employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Property. 23. No Claim to Assets or Rights of Licensee. By entering into this Agreement, none of the parties are granted any assets, rights, titles or interest to the other's assets, rights, title or interests, except as otherwise set forth in this Agreement. 24. Compliance With Laws. Licensee and/or its authorized agents agree to comply with all applicable laws, codes (including, but not limited to, the Florida Building Code as it may be amended), ordinances and regulations enacted or promulgated by federal, state, county, and city government including the provisions of the Zoning Ordinance, Charter and Code of the City. Licensee and/or its authorized agents shall also comply with reasonable directives of the City Manager. 25. Additional Expenses. Under no circumstances will the City be liable for any costs or expenses incurred by Licensee under this Agreement or as a result of its programs or related activities beyond those that are specifically set forth in this Agreement. 26. Indemnification. Licensee shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, violation or negligence (whether active or passive) of Licensee or its employees, 14 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, violation or negligence (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of the Licensee to comply with any of the paragraphs herein or the failure of the Licensee to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Licensee expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Licensee, or any of its subcontractors, as provided above, for which the Licensee's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 27. Insurance. Licensee, at its sole cost, shall obtain and maintain in full force and effect at all times throughout the period of this Agreement, the following insurance coverage: A. Commercial General liability insurance on a Comprehensive General liability coverage form, or its equivalent, including premises, operations and contractual coverage's against all claims, demands or actions for bodily injury, personal injury, death or property damage occurring in or about the Property with such limits as may be reasonably requested by the City from time to time but not less than $1,000,000 per occurrence combined single limit for bodily injury and property damage. General Liability shall also include assault and battery and child molestation. The City shall be named as Additional Insured on the policy or policies of insurance. B. Automobile liability insurance covering all owned, non -owned and hired vehicles used in conjunction with operations covered by this agreement. The policy or policies of insurance shall contain a combined single limit of at least $500,000 for bodily injury and property damage. The requirements of this provision will be waived upon submission of a written statement from Licensee that no automobiles are used to conduct business. 15 C. Worker's Compensation in the form and amounts required by State law. D. "All Risk" property insurance against loss or damage by fire, windstorm, with such endorsements for extended coverage, vandalism, malicious mischief, flood and special coverage, insuring 100% of the replacement cost of Licensee's improvements, fixtures, equipment, furniture and all other personal property in and about the Property. E. The City's Department of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Licensee. The Licensee shall provide any other insurance or security reasonably required by the City. F. The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to the City. Said notice should be delivered to the City of Miami, Department of Risk Management, 444 SW 2 Avenue, 9th Floor, Miami, Florida 33130, with copy to City of Miami, Department of Public Facilities, 444 SW 2 Avenue, 3rd Floor, Miami, Florida 33130, or such other address that may be designated from time to time. G. A current evidence and policy of insurance evidencing the aforesaid required insurance coverage shall be supplied to Department of Public Facilities of the City at the commencement of the term of this Agreement and a new evidence and policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Insurance policies required above shall be issued by companies authorized to do business under the laws of the State, with the following qualifications as to management and financial strength: the Licensee should be rated "A" as to management, and no less than class "X" as to financial strength, in accordance with, the latest edition of Best's Key Rating Guide, or the Licensee holds a valid Florida Certificate of Authority issued by the State of Florida, Department of Insurance, and is a member of the Florida Guarantee Fund. Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required, does not constitute a waiver of Licensee's obligation to fulfill the insurance requirements herein. In the event Licensee shall fail to procure and place such insurance, the City may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Licensee to the City as an additional fee upon demand and shall in each 16 instance be collectible on the first day of the month or any subsequent month following the date of payment by the City. Licensee's failure to procure insurance shall in no way release Licensee from its obligations and responsibilities as provided herein. 28. Safety. Licensee will allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules,,regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Licensee shall have no recourse against the City, its agents, or representatives from the occurrence, non- occurrence or result of such inspection(s). Upon issuance of a notice to proceed, the Licensee shall contact the Risk Management Department at (305) 416-1700 to schedule the inspection(s). 29. Americans With Disability Act. Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall take affirmative steps to ensure nondiscrimination in employment of disabled persons. 30. City Access To Property. The City and its authorized representative(s) shall have at all times access to the Property. The City will maintain a complete set of keys to the Property. Licensee, at its sole cost and expense, may duplicate or change key locks to the Property but not until first receiving written approval from the Director for such work. In the event Licensee changes key locks as approved by the Director, Licensee, at its sole cost and expense, must also provide to the City a copy or copies of said keys, if more than one copy is required. The City shall have access to and entry into the Property at any time to (a) inspect the 17 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, Licensees or others, and (e) for other purposes as may be deemed necessary by the City Manager in the furtherance of the City's corporate purpose; provided, however, that City shall make a diligent effort to provide at least 24-hours advance notice and Licensee shall have the right to have one or more of its representatives or employees present during the time of any such entry. The City shall not be liable for any loss, cost or damage to the Licensee by reason of the exercise by the City of the right of entry described herein for the purposes listed above. The making of periodic inspection or the failure to do so shall not operate to impose upon the City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 31. Public Records. Licensee understands that the public shall have access, at all reasonable times, to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. 32. Nondiscrimination Licensee represents and warrants to the City that Licensee does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Licensee's use of the Property on account of race, color, sex, religion, age, handicap, marital status or national origin. 33. No Discrimination in Hiring. In the performance of this Agreement or any extension thereof, Licensee and/or its authorized agents shall not discriminate against any employee or applicant for employment 18 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. 34. Conflict of Interest. Licensee is aware of the conflict of interest laws of the City (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. Licensee further covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City. Licensee further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Licensee, its employees or associated persons, or entities must be disclosed in writing to the City. 35. Waiver of Jury Trial; Attorney's Fees. 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. In the event of any litigation between the parties arising out of this Agreement, each party shall bear their own attorney's fees. 19 36. Notices. All notices or other communications, which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by hand, telecopy, or registered mail addressed to the other party at the address indicated herein. Such notice shall be deemed given on the day on which hand delivered; faxed or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. If to City of Miami: With a copy to: If to Licensee: City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 City Attorney City of Miami 444 SW 2❑d Avenue Suite 945 Miami, Florida 33130 Department of Parks & Recreation City of Miami 444 SW 2nd Avenue, 8th Floor Miami, Florida 33130 Department of Public Facilities City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 Miami Rowing and Watersports Center, Inc. Attention: Dr. Fernando Mendoza, President 3832 Shipping Avenue Miami, Florida 33146 37, Advertising. Licensee shall not permit any signs or advertising matter to be placed either in the interior 20 or upon the exterior of the Property without having first obtained the approval of the Director or his/her designee, which approval may be withheld for any or no reason, at his sole discretion. Licensee shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Licensee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this Agreement, Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Property. If any part of the Property is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Property an appropriate sign indicating City's having issued this Agreement. 38. Waiver. Any waiver by either party or any breach by either party of any one or more of the covenants, conditions or provisions of this Agreement shall not be construed to be a waiver of any subsequent or other breach of the same or any covenant, condition or provision of this Agreement, nor shall any failure on the part of the City to require or exact full and complete compliance by Licensee with any of the covenants, conditions or provisions of this Agreement be construed as in any manner changing the terms hereof to prevent the City from enforcing in full the provisions hereto, nor shall the terms of this Agreement be changed or altered in any manner whatsoever other than by written agreement of the City and Licensee. 39. Ownership Of Improvements. As of the Effective Date and throughout the Term of this Agreement and any extension 21 thereof, Licensee agrees that all buildings and improvements constructed by Licensee on the Property shall not be erected without prior approval of the City Manager and upon completion thereon shall be vested in the City. Furthermore, title to all Alterations made in or to the Property, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Property. 40. Surrender Of Property. Upon the expiration of this Agreement or in the event of cancellation pursuant to revocation, "Cancellation By Request Of Licensee" or "Automatic Termination", or at the expiration of the time limited by the notice, Licensee shall peacefully surrender the Property broom clean and in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Property. Upon surrender, Licensee shall promptly remove all its personal property, trade fixtures and equipment and Licensee shall repair any damage to the Property caused thereby. Should Licensee fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. At the City's option, the City may require Licensee to restore the Property so that it shall be as it was on the Effective Date. In the event Licensee fails to remove its personal property, equipment and fixtures from the Property within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as the City sees fit, all at Licensee's sole cost and expense. 41. Compliance with Environmental Laws. Licensee represents and warrants that during the term of this Agreement, it will not use or employ the property, or any other City -owned property, to handle, transport, store or dispose of 22 any hazardous waste or substances and that it will not conduct any activity at the Property or City -owned property in violation of any applicable Environmental Laws. 42. Invalidity. In the event that any non -material provision of this Agreement shall be held to be invalid for any reason, such invalidity shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. 43. Time of Essence. It is expressly agreed by the parties hereto that time is of the essence with respect to this Agreement. If the final day of any period falls on a weekend or legal holiday, then the final day of said period or the date of performance shall be extended to the next business day thereafter. 44. No Interpretation Against Draftsmen. The parties agree that no provision of this Agreement shall be construed against any particular party and each party shall be deemed to have drafted this Agreement. 45, Further Acts. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by the parties, the parties each agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered any and all such further acts, deeds and assurances as may be necessary to consummate the transactions contemplated hereby. 46, Litigation. Any dispute herein shall be resolved in the courts of Miami -Dade County, Florida. The parties shall attempt to mediate any dispute without litigation. However, this is not intended to establish mediation as a condition precedent before pursuing specific performance, equitable or injunctive relief. 23 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. 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. 50. Miscellaneous. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 51. Entire Agreement. This Agreement represents the entire understanding between the parties hereto as to the subject matter hereof, and supersedes all prior written oral negotiations, representations, warranties, statements or agreements between the parties hereto as to the same. There are no promises, terms and conditions, or obligations other than those contained herein, and no party has relied upon the statements or promises of the representatives of any party hereto. 52. Radon Gas. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county 24 public health unit. 53. Authori 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers and hereunto duly authorized as of the date first above written. ATTEST: LICENSEE: Miami Rowing and Watersports Center, Inc. a nonprofit organization under the laws of the State of Florida By: By: Signature Signature By: Print Name Print Name Signature Print Name Affirm: Corporate Secretary ATTEST: 25 (Corporate Seal) CITY OF MIAMI, a municipal corporation of the State of Florida Priscilla A. Thompson City Manager City Clerk Pedro G. Hernandez APPROVED AS TO INSURANCE REQUIREMENTS: LeeAnn Brehm, Administrator Department of Risk Management APPROVED AS TO LEGAL FORM AND CORRECTNESS; Jorge L. Fernandez City Attorney