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HomeMy WebLinkAboutExhibitREVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO COCONUT GROVE CARES, INC. FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT 3870 WASHINGTON AVENUE, MIAMI, FLORIDA A/K/A 3900 THOMAS AVENUE CONTENTS 1. PURPOSE 5 2. COMMON AREAS 3. OCCUPANCY AND USE PERIOD 6 4. DUTY TO OPERATE FOR PUBLIC PURPOSE 6 5. INTEREST CONFERRED BY THIS AGREEMENT 6 6. USE FEE 7 7. LATE FEE 7 8. RETURNED CHECK FEE 8 9. GUARANTEE DEPOSIT 8 10. CONDITION OF THE AREAS AND MAINTENANCE 9 11. UTILITIES AND SERVICES 10 12. IMPROVEMENTS, ALTERATIONS, ADDITIONS OR 10 REPLACEMENTS 13. VIOLATIONS, LIENS AND SECURITY INTERESTS 11 14. CITY ACCESS TO FACILITY 12 15. INDEMNIFICATION AND HOLD HARMLESS 12 16. INSURANCE 13 17. SAFETY 14 18. NO LIABILITY 14 19. TAXES AND FEES 14 20. CANCELLATION BY REQUEST OF EITHER OF THE PARTIES 15 WITHOUT CAUSE 21. REVOCATION -AT -WILL 15 22. VIOLATIONS 15 23. NOTICES 16 24. ADVERTISING 16 25. OWNERSHIP OF IMPROVEMENTS 17 26. SURRENDER OF AREAS 17 27. ASSIGNMENT OR TRANSFER 18 28. NONDISCRIMINATION 18 29. AFFIRMATIVE ACTION 18 30. AMERICANS WITH DISABILITIES ACT 19 31. MINORITY/WOMEN BUSINESS UTILIZATION 19 32. WAIVER OF JURY TRIAL 19 33. WAIVER 20 . 34. AMENDMENTS AND MODIFICATIONS 20 35. COURT COSTS AND ATTORNEY (S)' FEES 20 36. COMPLIANCE WITH ALL LAWS APPLICABLE 21 37. HAZARDOUS MATERIALS 21 38. RADON GAS 22 39 CONFLICT OF INTERESTS 22 40. PUBLIC RECORDS 23 41. THIRD PARTY BENEFICIARY 23 42. NO PARTNERSHIP 23 43. SEVERABILITY AND SAVINGS CLAUSE 23 44. NO INTERPRETATION AGAINST DRAFTSMEN 24 45. HEADINGS 24 46. AUTHORITY 24 47. ENTIRE AGREEMENT 25 EXHIBIT 'A' THE AREAS 28 EXHIBIT `B' INSURANCE REQUIREMENTS 30 REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is made this day of , 2007, between the City of Miami (the "City") a municipal corporation of the State of Florida and Coconut Grove Cares, Inc., a non-profit corporation organized under the laws of the State of Florida (the "Licensee"). RECITALS WHEREAS, the City and Licensee ("the Parties") desire and intend to enter into a Revocable License Agreement for the use of city -owned property located at 3870 Washington Avenue (also known as 3900 Thomas Avenue), Miami, Florida; and WHEREAS, Licensee has expressed its interest in utilizing this city -owned property for after -school intervention, tutorial/educational, computer training and sports/recreational activities for youth, parenting skills program activities as well as for related administrative office uses; and WHEREAS, this Agreement is not assignable; and WHEREAS, this Agreement is revocable -at -will by the City and without the consent of the Licensee; and WHEREAS, this Agreement does not transfer an interest in real property including any leasehold interest in real property owned by the City; and WHEREAS, this Agreement does not confer a right to use any real property for any general purposes; and WHEREAS, this Agreement does not convey or transfer any right to exclude the City from any real property; and WHEREAS, this Agreement permits only certain, enumerated, specific and listed permitted uses and does not permit anything further; NOW, THEREFORE, in order to carry out the intent as expressed herein and in consideration of the mutual agreements subsequently contained, the City and Licensee agree as follows: 4 1. PURPOSE. The City is the owner of real property and improvements thereon located at 3870 Washington Avenue, Miami, Florida also known as 3900 Thomas Avenue, (the "Property"). The City has determined that the certain areas ("Areas") of the Property depicted as Exhibit A attached hereto and made a part hereof, are not needed at this time by any of the City's offices or departments. The City has expressed its desire to assist the Licensee in accomplishing its purpose and in furtherance thereof authorizes the Licensee to occupy and use the Areas under the conditions hereinafter set forth. The use of the Areas is limited to Licensee's after school youth and parenting skills training activities, including but not limited to arts/crafts, cultural, computer training, tutorials, other educational activities, tennis, and other sports/ recreational activities, self-esteem workshops and related administrative office uses (the "Permitted Uses") and is not to be used for any other purpose whatsoever. Any use of the Areas not authorized as Permitted Uses must receive the prior written consent of the City Manager or his/her designee. This consent may be withheld for any or no reason, including, but not limited to additional financial consideration. Licensee shall operate, manage, supervise and use the Areas for program activities on a non-exclusive basis. Licensee shall operate, manage, supervise and administer the Areas as an independent contractor and not as an employee of the City. 2. COMMON AREAS. Licensee shall have the nonexclusive right (in common with other occupants of the Areas) to use the common areas of the Property ("Common Areas"), as described in Exhibit 'A' for the purposes intended, subject to such rules and regulations as City may establish from time to time. 3. OCCUPANCY AND USE PERIOD. The Effective Date of this Agreement shall be the first of the month following the execution date by both Parties, if the execution date of the Agreement is other than the first day of the month ("Effective Date") and shall continue on a month -to - month until the first to occur of the following: a) Cancellation or termination pursuant to Paragraph 20 herein; or b) Automatic termination, subject to the notice provisions of Paragraph 21 herein; or c) "Revocation -at -will" by the City Manager without prior notice. 4. DUTY TO OPERATE FOR PUBLIC PURPOSE. Licensee, at all times during Licensee's use of the Areas shall: (i) utilize the Areas solely in furtherance of the Permitted Uses described in Section 1 herein; (ii) maintain an active status as a Florida Non Profit Corporation; and (iii) from time to time, upon request of the City, furnish the City with current disclosure information with respect to the identity of the officers and directors of Licensee's non-profit corporation. 5. INTEREST CONFERRED BY THIS AGREEMENT. Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Areas solely to provide the Permitted Uses described in Section 1 herein and for 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 Areas subject to the terms of this Agreement. No leasehold interest in the Areas 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 Areas by virtue of this Agreement or its use of the Areas hereunder. Additionally, Licensee does not and shall not claim at any time any interest or 6 estate of any kind or extent whatsoever in the Areas by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions or alterations to the Areas which may be authorized by the City. 6. USE FEE. In consideration for this Agreement, commencing from the Effective Date of the Agreement, Licensee agrees to pay to the City an annual Use Fee in the amount of One Hundred Dollars and Zero 00/100 Cents ($100.00) (the "Use Fee"), plus State Use Tax, if applicable, which shall be paid in advance and in full on or before the first day of each month, without notice or demand. Nothing in this paragraph shall be construed to grant Licensee the right to use or occupy the Areas for a term greater than on a month -to -month basis. Payments shall be made payable to "City of Miami" and shall be mailed to 444 S.W. 2nd Avenue, 6th Floor, Finance Department (Attn. Collections), Miami, Florida 33130, or to such other address as may be designated from time to time. 7. LATE FEE. In the event any installment of the Use Fee is not received by the City within five (5) days after it becomes due, Licensee shall pay to City a late charge of ten percent (10%) of the amount due. Such late fee shall constitute additional fees due and payable to City by Licensee upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by City shall not constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 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. 8. RETURNED CHECK FEE. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule: Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. 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 City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 9. GUARANTEE DEPOSIT. Simultaneously with the execution of this Agreement, the Licensee shall deposit with the City the sum of Five Hundred Dollars and 00/100 ($500.00) prior to the Effective Date of the Agreement as guarantee ("Guarantee Deposit") for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement. If Licensee is in violation of the Agreement beyond any applicable notice or cure period, the City may use, apply or retain all or any part of the Guarantee Deposit for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum which City may expend or be required to expend as a result of Licensee's violation. The use, application or retention of the Guarantee Deposit or any portion thereof by City shall not prevent City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which City may be entitled otherwise. At any time or times when City has made any such application of all or any part of the Guarantee Deposit, the Licensee shall deposit the sum or sums equal to the amounts so applied by City within ten (10) days of written notice by the City. Provided Licensee is not in violation of this Agreement, the Guarantee Deposit or balance thereof, as the case may be, shall be returned to Licensee upon the termination of this Agreement or upon any later date after which Licensee has vacated the Area in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Guarantee Deposit (or balance thereof) to the Licensee, City shall be completely relieved of liability with respect to the Guarantee Deposit. Licensee shall not be entitled to receive any interest on the Guarantee Deposit. 10. CONDITION OF THE AREAS AND MAINTENANCE. Licensee accepts the Area(s) "as is", in their present condition and state of repair and without any representation by or on behalf of City, and agrees that City shall, under no circumstances, be liable for any latent, patent or other defects in the Area(s). Licensee, at its sole cost, shall maintain the exterior and interior of the Area(s) 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. License shall be responsible for all repairs to the Area(s) required or caused by Licensee's use of any part thereof. Licensee agrees to make all changes necessary to the Area(s) 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. 9 11. UTILITIES. The Licensee shall pay for all utilities and services, including but not limited to, electricity, air conditioning, water, stormwater fees, gas, garbage and sewage disposal and telephone used by Licensee during its occupancy of the Area(s), 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 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(s), the Licensee shall reimburse such amount to the city within five (5) calendar days of notification of the City's receipt of said bill. 12. IMPROVEMENTS, ALTERATIONS, ADDITIONS OR REPLACEMENTS. 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. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify the City of such work. The Licensee shall submit to the City proof of funding and/or its financing plans along with the plans and specifications. The Licensee shall be solely responsible for applying and acquiring all necessary permits, including but not limited to, building permits. The Licensee shall be responsible for all costs associated with any alterations including, but not limited to, design, construction, installation, and permitting costs. All alterations must comply with all statutes, laws, ordinances and regulations of the State of Florida, Miami -Dade County, the City of Miami and any other agency that may have jurisdiction over the Property as it presently exists and as it may be amended hereafter. By the installation of any improvement, 10 alteration, addition or replacement, the City shall not be excluded from the Property. 13. VIOLATIONS, LIENS AND SECURITY INTERESTS. Licensee, at its expense and with due diligence and dispatch, shall secure the cancellation or discharge of or bond off same in the manner permitted by law, all notices of violations arising from or otherwise in connection with Licensee's improvements or operations in the Areas which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors and materials men for all work and labor done at Licensee's request. Should any such lien be asserted or filed, regardless of the validity of said liens or claims, Licensee shall bond against or discharge the same within fifteen (15) calendar days of Licensee's receipt of notice of the filing of said encumbrance. In the event Licensee fails to remove or bond against said lien by paying the full amount claimed, Licensee shall pay the City upon demand any amount paid out by City, including City's costs, expenses and reasonable attorneys' fees. Licensee further agrees to hold City harmless from and to indemnify the City against any and all claims, demands and expenses, including reasonable attorney's fees, by reason of any claims of any contractor, subcontractor, material man, laborer or any other third person with whom Licensee has contracted or otherwise is found liable to, in respect to the Areas. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, material man or supplier thereof against any part of the Areas or any of the improvements thereon and each such contract shall provide that the contractor must insert a statement in any subcontract or purchase order that the contractor's contract so provides for waiver of lien and that the subcontractor, material man and supplier agree to be bound by such provision. 11 14. CITY ACCESS TO FACILITY. City and its authorized representative(s) shall have at all times access to the Areas. City will maintain a complete set of keys to the Areas. Licensee, at its sole cost and expense, may duplicate or change key locks but not until first receiving written approval from the Director of Public Facilities (hereinafter referred to as "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 a copy of said keys to the Director. The City shall have access to and entry into the Areas at any time to (a) inspect the Areas, (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 and (d) 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, its officers, directors, employees, representatives and agents, shall not be liable for any loss, cost or damage to the Licensee by reason of the exercise by the City of the right of entry described herein for the purposes listed above. The making of periodic inspection or the failure to do so, shall not operate to impose upon City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 15. INDEMNIFICATION AND HOLD HARMLESS. Licensee shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses 12 (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 negligence (whether active or passive) of Licensee or its employees, agents or subcontractors (collectively referred to as "Licensee"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of the Licensee to comply with any of the paragraphs herein or the failure of the Licensee to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Licensee expressly agrees to indemnify and hold harmless the Indemnitees, collectively or individually, 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 Areas, 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 Areas. 16. INSURANCE. In connection herewith, Licensee shall obtain and maintain or cause to obtained and maintained throughout the term of this Agreement the types and 13 amounts of insurance coverage set forth in Exhibit `B,' attached hereto and incorporated herein by this reference. 17. 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 Areas, Licensee shall contact the City's Risk Management Department to schedule the inspection(s). 18. NO LIABILITY. In no event shall the City be liable or responsible for damage to the personal property, improvements, fixtures and/or equipment belonging to or rented by Licensee, its officers, agents, employees, invitees or patrons, including without limitation, damages resulting from fire, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Areas, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Areas, or from hurricane or any act of God or any act of negligence of Licensee, its officers, employees, agents, invitees, or patrons or any person whomsoever whether such damage or injury results from conditions arising at or about the Areas or upon other portions of the Property or from other sources. 19. TAXES AND FEES. Licensee shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes or assessments levied against the 14 Areas and/or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Areas 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 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 City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent (100%) of the contested tax or fee with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. 20. CANCELLATION BY REQUEST OF EITHER OF THE PARTIES WITHOUT CAUSE. Either party may cancel this Agreement at any time by giving thirty (30) days written notice to the non -canceling party prior to the effective date of the cancellation. 21. AUTOMATIC TERMINATION BY CITY MANAGER FOR CAUSE. If Licensee in any manner violates the restrictions and conditions of this Agreement, then, and in the event, after ten (10) days written notice given to Licensee by the City Manager within which to cease such violation or to correct such deficiencies and upon failure of Licensee to do so after such written notice, within said ten (10) day period, this Agreement shall be automatically canceled without the need for further action by the City. 22. VIOLATIONS. If Licensee in any manner violates the restrictions and conditions of this Agreement, then, after ten (10) days written notice given to Licensee by the City Manager or his/her designee to cease such violation or correct such deficiencies, and upon failure of Licensee to do so after such written notice within said ten (10) day period, this Agreement shall be automatically canceled without the need for further 15 action by the City. This provision shall not interfere with the City's rights pursuant to Section 3 (c) of the Agreement., entitled "Revocation -At -Will". 23. NOTICES. All notices or other communications which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to City and Licensee at the addresses indicated herein or as the same may be changed from time to time, or for purposes of canceling this Agreement, the City may serve notice by posting it at the Areas. Such notice shall be deemed given on the day it is posted at the Areas; on which personally served; or if by certified mail, on the fifth day after being mailed or the date of actual receipt, whichever is earlier. The Notices addresses of the parties are: CITY OF MIAMI City of Miami City Manager 3500 Pan American Drive Miami, FL 33133 COPY TO: City of Miami City Attorney 444 SW 2nd Avenue, Suite 945 Miami, FL 33130 City of Miami Attn: Director Department of Public Facilities 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 LICENSEE COCONUT GROVE CARES, INC. 3870 Washington Avenue Miami, Florida 33133 Attn: Executive Director 24. ADVERTISING. Licensee shall not permit any additional or new signs or advertising matter to be placed either in the interior or upon the exterior of the Areas other than the existing signage on the building, without having first obtained the approval of the 16 Director, which approval may be withheld for any or no reason, at his/her 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 Areas. If any part of the Areas are 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 Areas within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Areas to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Areas an appropriate sign indicating City's having issued this Agreement. 25. OWNERSHIP OF IMPROVEMENTS. As of the Effective Date and throughout the Occupancy and Use Period, title to all buildings and improvements thereon shall be vested in City. Furthermore, title to all alterations made in or to the Areas, 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 Areas. 26. SURRENDER OF AREAS. In the event of cancellation, termination or expiration of this Agreement, Licensee shall peacefully surrender the Areas by the time specified, as well as 17 broom clean and restore to 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 or Areas. Upon surrender, Licensee shall promptly remove all its personal property, trade fixtures and equipment and Licensee shall repair any damage to the Areas caused thereby. Should Licensee fail to repair any damage caused to the Areas within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Areas to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. City may require Licensee to restore the Areas so that the Areas shall be as they were on the Effective Date. In the event Licensee fails to remove its personal property, equipment and fixtures from the Areas within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as City sees fit, all at Licensee's sole cost and expense. 27. NO ASSIGNMENT OR TRANSFER. Licensee cannot assign or transfer its privilege of occupancy and use granted unto it by this Agreement. 28. NONDISCRIMINATION. Licensee shall not discriminate as to race, color, religion, sex, national origin, ancestry, age, disability, familial status, marital status or sexual orientation in connection with its occupancy and use of the Areas and improvements thereon. 29. 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 18 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. 30. AMERICANS WITH DISABILITIES ACT Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of utilizing the Areas, 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 the employment of disabled persons. 31. 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. Such lists will be made available to the Licensee at the time of the issuance of the Agreement by the City and updates will be routinely provided by the City's Office of Minority/Women Business Affairs. 32. 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. 33. WAIVER. No failure on the part of the City to enforce or insist upon performance of any of the terms of this Agreement, nor any waiver of any right hereunder by the City, unless in writing, shall be construed as a waiver of any other term or as a waiver of any future right to enforce or insist upon the performance of the same term. 34. 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. 35. COURT COSTS AND ATTORNEY(S) FEES. In the event it becomes necessary for the City to institute legal proceedings to enforce or interpret the provisions of this Agreement, Licensee shall pay the City's court costs and attorney's fees through all trial and appellate levels. Licensee acknowledges that Florida law provides for mutuality of attorneys' fees as a remedy in contract cases and specifically and irrevocably waives its right to collect attorney's fees from the City under applicable laws, including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent of the parties hereto, that in no event will the City be required to pay Licensee's attorney's fees and court costs for any action arising out of this Agreement. In the event that Licensee's waiver under this section is found to be invalid, then Licensee agrees that the City's liability for Licensee's attorney's fees and court costs shall not exceed the sum of $100.00. In the event that the waiver and limitations contained herein are found to be invalid, or are otherwise not upheld, then the provisions of this 20 Section shall become null and void and each party shall be responsible for its own attorney's fees and costs. 36. COMPLIANCE WITH ALL LAWS APPLICABLE. Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local laws, ordinances and regulations, including but not limited to applicable zoning and building regulations and ordinances, is a condition of this Agreement. Licensee shall comply therewith as the same presently exist and as they may be amended hereafter. This Agreement shall be construed and enforced according to the laws of the State of Florida. 37. HAZARDOUS MATERIALS. The Licensee shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders, administrative actions and administrative orders, including, without limitation, any Hazardous Material Laws ("Hazardous Materials Laws") relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances, 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 Areas required for the Licensee's use or storage of any Hazardous Materials in or about the Areas in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this 21 Agreement, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Areas by the Licensee or at the Licensee's direction, to be removed from the Areas 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 Areas 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. 38. RADON GAS. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. Licensee may, have an appropriately licensed person test the Areas for radon. If the radon level exceeds acceptable EPA standards, the City may choose to reduce the radon level to an acceptable EPA level, failing which either party may cancel this License. 39. CONFLICT OF INTERESTS. 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 22 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. 40. 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. 41. 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. 42. NO PARTNERSHIP. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venturer of the other. 43. 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 23 a license, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. With regard to those provisions which do not affect the Parties intent for this Agreement, should any provision, section, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, section, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. 44. NO INTERPRETATION AGAINST DRAFTSMEN. This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties. 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. HEADINGS. Title and section headings are for convenient reference and are not a part of this Agreement. 46. 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 on their respective behalf. 24 47. ENTIRE AGREEMENT. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly set forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. IN 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: Priscilla A. Thompson Pedro G. Hernandez City Clerk City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: LeeAnn Brehm, Director Jorge L. Fernandez Risk Management Department City Attorney 25 WITNESSES: Signature Print Name Signature Print Name LI CENSEE COCONUT GROVE CARES, INC., a Florida non-profit corporation Signature Print Name Print Title CORPORATE SEAL 26 EXHIBIT 'A' AREAS Use Areas `Barnyard' Building Common Areas Recreational Courts Tot Lot (See also Locational Sketch attached) 27