Loading...
HomeMy WebLinkAboutExhibit 1 SUBSIGN LOCATION LICENSE AGREEMENT 1, Grant of License. The CITY OF MIAMI, a municipal corporation of the State of Florida (hereinafter called LICENSOR), hereby licenses and grants to CLEAR CHANNEL OUTDOOR (hereinafter called LICENSEE) the use of the "Licensed Premises" (as hereinafter defined) consisting of a portion of the property located at ,401 NW 3rd AVE, Miami Police Dept. in the City of Miami, County of Miami -Dade, in the State of Florida (the "Property") (with free access over and across same) for the purpose of erecting, constructing, installing, placing, replacing, operating, maintaining, servicing and removing LICENSEE'S advertising sign(s) thereon, including supporting structures, illumination facilities and connections, back-up panels, service ladders and other appurtenances and ancillary equipment (the "Sign Structure"). 2. Description of Licensed Premises, The "Licensed Premises" shall consist of that portion of the Property where the supporting structure of the Sign Structure is or will be affixed to the ground, the surrounding area and the airspace above the same, as more particularly described on Exhibit A attached hereto and made a part hereof. In the event that the Sign Structure is/are not constructed as of the date of this License, then the Licensed Premises shall be located on the S/W portion of the Property in approximately the location described on Exhibit A. Upon completion of the construction of the Sign Structure, the parties hereto agree to replace Exhibit A with a new exhibit describing the actual location of the Sign Structure and the Licensed Premises. 3. Access by LICENSEE. LICENSOR grants to LICENSEE and/or its agents the right to vehicular and pedestrian ingress and egress to and from the Sign Structure over and across the Property for (i) all purposes reasonably necessary for the erection, construction, installation, placing, replacing, operating, maintaining, servicing and removal of the Sign Structure, (ii) the right to provide or establish electrical power to the Sign Structure(s) (at LICENSEE's sole expense) and (iii) the right to place incidental and ancillary equipment thereon. 4. Term, The initial term (the "Term") of this License shall be through to be commensurate with the term of that certain Settlement Agreement effective , by and between LICENSOR and LICENSEE, commencing on (the "Commencement Date"). Upon expiration of the initial Term , this Agreement may renew upon such terms as the parties may then determine. 5. Annual License Fee. LICENSEE shall pay to LICENSOR an Annual License Fee of Eighty Thousand Dollars ($80,000.00) per year ("Base License Fee") or twenty percent (20%) of gross revenues derived as a result of this License Agreement for years one through five (1-5), twenty-five percent (25%) for years six through 10 (6-10), thirty percent (30%) for years eleven through fifteen (11-15), and thirty-three percent (33%) for the remaining term, whichever is greater. The Base License Fee shall be payable in equal quarterly installments of Twenty Thousand Dollars ($20,000.00) The first quarterly payment of the License Fee shall be due and payable (the "License Fee Commencement Date") five (5) business days after the earlier to occur of (a) one hundred twenty (120) days after a building permit for the Sign Structure has been issued or (b) the date that LICENSEE receives notice from LICENSOR that the Sign Structure has received its final inspection approval. Each payment thereafter shall be made three months following the previous payment due date. Notwithstanding the foregoing, the License Fee Commencement Date shall be extended one day for each day that LICENSEE is delayed in erecting the Sign Structure as the result of an event of "Force Majeure" (as hereinafter defined). Within thirty (30) days after the anniversary of each License Fee Commencement Date, LICENSEE shall render LICENSOR with an accounting of revenues performed by an independent accounting firm, derived as a result of this License Agreement. If the accounting shows that the revenues were greater than the minimum amount due, LICENSEE shall make the appropriate percentage payment, as described herein, to LICENSOR within ten (10) days thereof. Should the provisions of Paragraph 10 become operative, or the Term of this License commences on some day other than the first of the month, all Annual License Fee payments required hereunder shall be prorated based upon a thirty (30) day month. The amount of revenues shall be certified to the City by a certified public accountant. iip-V (COP -7 6. Ownership of Licensed Premises. LICENSOR warrants that LICENSOR is the owner of the Property in fee simple, has full authority to make this Agreement and that there are no mortgages or similar liens upon the Property. 7. Ownership of Sign. The Sign Structure, improvements and appurtenances thereto placed on the Property hereafter by or for LICENSEE are LICENSEE'S trade fixtures and shall at all times remain the property of LICENSEE, and LICENSEE shall have the right to remove the same at any time during the Term of the License (as the same may be extended), or, for forty five (45) days after the expiration or termination of the License (the "Removal Date"). If LICENSEE removes its Sign Structure, only the above grade portions of said Sign Structure shall be removed. The future existence of below grade improvements shall not constitute continued occupancy of the Licensed Premises by LICENSEE. If upon the expiration of the Term (as the same may be extended) the parties hereto are engaged in good faith negotiation of the terms of a renewal license, then LICENSEE shall not be obligated to remove its Sign Structure from the Licensed Premises until the later to occur of (i) the Removal Date, and (ii) thirty (30) days after the receipt of written notice from LICENSOR expressly stating that LICENSOR does not desire to continue such renewal negotiation. 8. Termination by LICENSEE. In the event that (a) LICENSEE is unable to secure or maintain any required permit or license from any appropriate governmental authority; (b) federal, state or local statute, ordinance regulation or other governmental action precludes or materially limits use of the Licensed Premises for outdoor advertising purposes; (c) LICENSEE's Sign Structure on the Licensed Premises becomes entirely or partially obstructed or destroyed; (d) the advertising value of the Sign Structure is impaired or diminished by LICENSOR'S action; (e) there occurs a diversion of traffic from, or a change in the direction of, traffic past the Sign Structure; (f) LICENSEE is prevented from maintaining electrical power to the Licensed Premises or illuminating its Sign Structure; (g) LICENSEE finds that, in LICENSEE'S reasonable opinion, the continued maintenance/operation of the Sign Structure is impractical or uneconomical due to engineering, architectural, construction or maintenance circumstances which will require structural improvements to LICENSOR's Property; (h) maintenance will be hampered or made unsafe due to conditions caused by nearby properties, land uses, or utilities, then LICENSEE shall, at its option, have the right to either reasonably abate the License Fee until the issues with (a) through (h) above are cured, and/or terminate this License at no cost to LICENSEE upon thirty (30) days notice in writing to LICENSOR and LICENSOR shall refund to LICENSEE any License Fee payment paid in advance for the remainder of the un-expired term. 9. Utilities; Right to Illuminate Sign. LICENSEE shall have the right at its sole expense to add any underground lines and telecommunications devices necessary to the operation of the Sign Structure. The LICENSEE shall maintain a separate account with the appropriate utility companies for utility services. If LICENSEE is prevented by the LICENSOR from illuminating its Sign Structure, then as an alternative to the remedy in Paragraph 8(g) above, the LICENSEE may reduce the License Fee provided in Paragraph 2 above by 50%, with such reduced License Fee to remain in effect so long as such condition continues to exist. LICENSEE agrees to pay all electrical power costs used in conjunction with its sign. 10. Visibility. It is the understanding of the parties that visibility of the Sign Structure to the traveling public is the essence of this License. LICENSOR shall not cause LICENSEE's Sign Structure to be obscured from visibility to the traveling public. Upon LICENSEE's request, LICENSOR shall promptly trim, cut, or remove brush, trees, shrubs, or any vegetation or remove any obstructions of any kind on the Property, or any other property owned or controlled by LICENSOR, which limit or impair the visibility, maintenance or operation of the Sign Structure. Should LICENSOR fail to act within ten (10) days of LICENSOR's request, LICENSEE shall have the right to perform the required action itself. 11. Enjoyment. LICENSOR warrants that if LICENSEE shall pay the License Fee and otherwise comply with its obligations hereunder, LICENSEE shall and may peaceably and quietly have, hold and enjoy the Licensed Premises for the Term of this License free from any disturbance by LICENSOR or anyone acting by, through and under LICENSOR. 12. Notices. All Annual License Fees to be paid pursuant to this License and all notices or other communications required or permitted hereunder shall be in writing and shall be delivered to the persons listed below: As to CLEAR CHANNEL OUTDOOR: with a copy to: To the City of Miami: with a copy to: Carlos A. Migoya City of Miami 3500 Pan American Drive Miami, Florida 33133 Telephone: (305) 250-5300 Julie O. Bru, Esq. City Attorney City of Miami 444 S.W. 2ndAvenue Suite 945 Miami, Florida 33133 Telephone: (305) 416-1800 Facsimile: (305) 416-1801 13. Parties Bound; Assignment. This License shall be binding upon successors and assigns for the parties hereto and LICENSOR agrees to notify LICENSEE of any change of (i) ownership of the Property or the Licensed Premises, or (ii) LICENSOR's mailing address within seven (7) days of such change. LICENSOR shall not assign its interest under this License or any part thereof except to a party who purchases the underlying fee title to the Property or the Licensed Premises and LICENSEE shall not assign its interest under this License or any part thereof except to an entity that controls, is controlled by, or under common control with, LICENSEE provided, however, this sentence shall not preclude a collateral assignment of LICENSOR's or LICENSEE's interest under this License to an established financial institution as, and part of, a bonafide loan transaction nor shall it preclude an assignment by LICENSEE to any entity controlling, controlled by, or under control with, LICENSEE. 14. Force Majeure. As used in this Agreement, Force Majeure means a war, insurrection, hurricane, flood, fire, casualty, act of God, unusually severe weather, court order or proceeding (including, but not limited to, one in which the right of LICENSEE to erect or maintain a Sign Structure is contested, challenged or threatened) or shortage of labor or materials, in each case beyond the reasonable control and without the fault of the Party claiming an excuse from performance. If any party shall be delayed in the performance of any obligation hereunder, as a result of a Force Majeure, then the performance of such obligation shall be extended by the length of such delay. In response to and during any delay caused by a Force Majeure, any party seeking an excuse of performance due to such Force Majeure shall work diligently and in good faith to minimize the delay caused by such Force Majeure. 15. Construction. The parties hereto have each carefully reviewed this License and have agreed to each tern set forth herein. No ambiguity is presumed to be construed against either party. 16. Returned Check Fee. In the event any check is returned to the LICENSOR as uncollectible, the LICENSEE shall pay to the LICENSOR a returned check fee (the "Returned Check Fee") based on the following schedule: Returned Amount $00.01 - 50.00 $50.01 - 300.00 $300.01 — 800.00 OVER $800 Returned Check Fee $20.00 $30.00 $40.00 5% of the returned amount. Such Returned Check Fee shall constitute additional fees due and payable to the LICENSOR by LICENSEE, upon the date of payment of the delinquent payment referenced above. Acceptance of such Returned Check Fee by the LICENSOR shall not, constitute a waiver of LICENSEE's violations with respect to such overdue amount nor prevent the LICENSOR from the pursuit of any remedy to which the LICENSOR may otherwise be entitled. In the event the LICENSOR must institute a civil suit to collect a returned check, the LICENSOR shall be entitled to recover a reasonable attorney's fee as provided by Florida Statutes. 17. Late Payments. LICENSEE hereby acknowledges that late payment by the LICENSEE to the LICENSOR of the Annual License Fee and other sums due hereunder will cause the LICENSOR to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any installment of the License Fee or any other sum due from LICENSEE shall not be received by the LICENSOR within fifteen (15) days after the date on which such sum is due, LICENSEE shall pay to the LICENSOR a late charge equal to five percent (5%) of such overdue amount. The Parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the LICENSOR will incur by reason of late payment by LICENSEE. Acceptance of such late charge by the LICENSOR shall not constitute a waiver of the LICENSEE's default with respect to such overdue amount, nor prevent the LICENSOR from exercising any of its other rights and remedies granted hereunder or at law or in equity. Except in the case where a late fee is paid by LICENSEE, any amount not paid to the LICENSOR within fifteen (15) days after the date on which such amount is due shall bear interest at the rate of 12% per annum from its due date. Payment of such interest shall not excuse or cure any default by LICENSEE under this Agreement. 18, Taxes. LICENSEE shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, governmental impositions, taxes or assessments (collectively "Assessment") levied against real or personal property of any kind, owned by or placed in, upon or about the Property by LICENSEE. Specifically, LICENSEE acknowledges that it shall pay any and all ad valorem taxes and use fees assessed on the Property by virtue of LICENSEE'S use of the Property as authorized herein. In the event LICENSEE appeals an Assessment, LICENSEE shall immediately notify the City Manager of LICENSOR or his/her authorized designee of its intention to appeal said Assessment and upon the request of the City Manager and his/her authorized designee shall furnish and keep in effect a surety bond of a responsible and substantial surety that is reasonably acceptable to the LICENSOR or other security reasonably satisfactory to the City Manager or his/her authorized designee, in an amount sufficient to pay one hundred percent (100%) of the contested Assessment with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. LICENSEE agrees to pay such Assessments either in lump sum or on an installment plan. Failure of the LICENSEE to pay any Assessment or any installment payment thereof within any applicable notice and cure period shall constitute a default under this Agreement. 19, Licenses, Authorizations and Permits. LICENSEE shall obtain, or cause to be obtained, and maintain in full force and effect throughout the term of this Agreement, at its sole expense, all licenses, authorizations and permits that are necessary for LICENSEE to conduct its commercial activities. LICENSEE shall be responsible for paying the cost of said applications and obtaining said licenses, authorizations and permits. Notwithstanding the foregoing, LICENSOR shall use reasonable commercial efforts, at no out of pocket expense to itself, to assist LICENSEE in securing such licenses and permits. 20. This Agreement Not a Lease. This Agreement solely authorizes LICENSEE to the temporary use of the Property for the limited purposes set forth herein and for no other purpose. This Agreement confers no exclusive possession of the Property, and the LICENSEE cannot exclude LICENSOR from the Property. The parties hereby agree that the provisions of this Agreement do not constitute a lease. The rights of LICENSEE hereunder are not those of a tenant, but are a mere personal privilege to do certain acts of a temporary character on the Property and to use the Property, subject to the terms of this Agreement. The LICENSOR 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, except as provided herein to the contrary, LICENSEE does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds by the LICENSEE for improvements, construction, repairs, partitions, or alterations to the Property which may be authorized by the City Manager or his/her designee. Notwithstanding the foregoing, LICENSEE shall be entitled to make any claim available to it for its losses against any duly authorized governmental entity (except LICENSOR) that takes the Licensed Premises or the Sign Structure thereon through an actual or threatened eminent domain proceeding. 21. Cancellation by Request of Either of the Parties Without Cause; Termination Fee. Either party may cancel this Agreement without cause, that is, for convenience, at any time, with thirty (30) days prior written notice to the non -cancelling party. This Agreement that is extended to the LICENSEE is revocable -at -will by the LICENSOR, through its City Manager, without the consent of the LICENSEE, in accordance with this Agreement. In the event the LICENSOR cancels this Agreement pursuant to this Paragraph 21 prior to the end of the term, LICENSOR shall pay a termination fee to LICENSEE equal to, if within the first twelve (12) months following the "License Fee Commencement Date", four (4) times the Annual License Fee due hereunder and LICENSEE shall be given a credit equal to the Permit Fee paid for the construction of the Sign Structure; if within the second twelve months following the "License Fee Commencement Date", three (3) times the Annual License Fee and LICENSEE shall be given a credit equal to ninety percent (90%) of the Permit Fee paid; if at any other time during the term, two (2) times the amount of the prior years License Fee. LICENSEE's credit for permit fees may be applied at a maximum rate of Five Thousand Dollars ($5,000.00) per year against any fees that LICENSEE may owe LICENSOR at the time of cancellation or in the future until the credit is exhausted. In the event the LICENSEE cancels this Agreement pursuant to this Paragraph 21 prior to the end of the initial term, LICENSEE shall pay a termination fee to LICENSOR equal to, if within the first twelve (12) months following the "License Fee Commencement Date", four (4) times the Annual License Fee due hereunder; if within the second twelve (12) months following the "License Fee Commencement Date", three (3) times the "Annual License Fee"; and at any other time during the term, two (2) times the amount of the prior year's Annual License Fee, or through the time when another company assumes the Sign Structure, whichever is less. The termination fee shall be paid on or before the day that this Agreement effectively terminates. If the cancellation is at the request of the LICENSOR and LICENSOR provides a substitute location owned by LICENSOR which is acceptable to LICENSEE in its sole reasonable discretion, the termination fee shall be limited to LICENSEE'S costs associated with relocating the advertising structure to the new location (not to exceed $75,000). If the cancellation is at the request of LICENSEE, the termination fee shall be reduced by any License Fee paid by another company for advertising on or within five hundred (500) feet of the Property within four (4) years of the termination date. 22. Termination for Cause. LICENSEE and LICENSOR each 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 Manager may give it thirty (30) days written notice within which to cease such violation or correct such deficiencies; provided, however, in the event the violation or deficiency is one which is not reasonably susceptible of being cured within such thirty (30) day period, then LICENSEE shall have such time to cure as is reasonable under the circumstances provided that LICENSEE is diligently pursuing such cure. Upon LICENSEE's failure to do so after receiving such default notice, the City Manager may cancel this Agreement upon giving ten (10) days written notice to the LICENSEE and thereafter the Agreement shall be deemed automatically canceled without the necessity for further action by the LICENSOR. If LICENSOR violates the terms, restrictions or conditions of this Agreement, then LICENSEE may give it thirty (30) days written notice within which to cease such violation; provided, however, in the event the violation is one which is not reasonably susceptible of being cured within such thirty (30) day period, then LICENSOR shall have such time to cure as is reasonable under the circumstances provided that LICENSOR is diligently pursuing such cure. Upon LICENSOR's failure to do so after receiving such default notice, the LICENSEE may cancel this Agreement upon giving ten (10) days written notice to the LICENSOR and thereafter the Agreement shall be deemed automatically canceled without the necessity for further action by the LICENSEE. 23. Condition of the Property and Maintenance. LICENSEE accepts the Licensed Premises "as is", in its present condition and state of repair condition and without any representation by or on behalf of the LICENSOR, and agrees that the LICENSOR shall, under no circumstances, be liable for any latent, patent or other defects in the Licensed Premises. LICENSEE shall provide all maintenance to the Licensed Premises. LICENSEE, at its sole cost, shall maintain the Licensed Premises in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall cause no waste or injury thereto. LICENSEE shall be responsible for all repairs to the Licensed Premises required or caused by LICENSEE's use of any part thereof. THE LICENSOR DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY FOR THE LICENSED PREMISES. LICENSEE agrees to make any changes necessary to the Licensed Premises relating to the use thereof by LICENSEE at LICENSEE's sole cost and expense in order to comply with all City, County and State code requirements for LICENSEE's occupancy thereof. 24. Surrender Of Area or Property. In either event of cancellation or at the natural expiration of the term, LICENSEE shall peacefully surrender the Property in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Property. Upon 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 LICENSOR directing the required repairs, LICENSOR shall cause the Property to be repaired at the sole cost and expense of LICENSEE. LICENSEE shall pay LICENSOR the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. At LICENSOR'S option, LICENSOR may require LICENSEE to restore the Property so that the Property 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 LICENSOR, but in no event shall said personal property, equipment and fixtures continue to be used as a Sign Structure. The LICENSOR, at its sole discretion and without liability, may remove and/or dispose of same as LICENSOR sees fit, all at LICENSEE'S sole cost and expense. 25. 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 LICENSOR, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work on the Property nor as giving the LICENSEE the right, power or the LICENSOR 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 LICENSOR '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 can 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 by court order, payment or bonding within thirty (30) days after the date LICENSEE has notice of the filing of a lien or 2) LICENSEE does not in good faith proceed to contest the lien by appropriate proceedings within the thirty (30) day period, then LICENSEE shall be in default of the Agreement. 26. LICENSOR Access To Licensed Premises. The LICENSOR and its authorized representative(s) shall have at all times access to the Licensed Premises to (a) inspect the Licensed Premises, (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 or his/her authorized designee in the furtherance of the LICENSOR's corporate purpose; provided, however, that LICENSOR 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. Notwithstanding the foregoing, LICENSOR and its representatives shall have no right to and shall not climb upon the Sign Structure; any inspection shall be from ground level. The LICENSOR shall not be liable for any loss, cost or damage to the LICENSEE by reason of the exercise by the LICENSOR of the right of entry described herein for the purposes listed above. The making of periodic inspections or the failure to do so shall not operate to impose upon the LICENSOR any liability of any kind whatsoever nor relieve the LICENSEE of any responsibility, obligations or liability assumed under this Agreement. 27. Safety. LICENSEE will allow LICENSOR 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 LICENSOR, 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 LICENSOR, its agents, or representatives from the occurrence, nonoccurrence or result of such inspection(s). Upon issuance of a notice to proceed, the LICENSEE shall contact the Risk Management Department to schedule the inspection(s). 28. Indemnification. LICENSEE shall indemnify, defend at its own cost and expense and hold harmless the LICENSOR 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 to the extent it 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"), or (ii) the failure of the LICENSEE to comply with any of the Sections herein or the failure of the LICENSEE to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement, provided however, that the indemnification obligations and releases in this Section do not apply to any matters arising as a result of or otherwise caused by the negligence or willful misconduct of the LICENSOR or the unlawful acts or omissions of the LICENSOR. 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 other similar laws. 29. Insurance. LICENSEE, at its sole cost, shall obtain and maintain in full force and effect at all times throughout the period of this Agreement, the insurance coverage as fully set forth in Exhibit B attached hereto and made a part hereof. 30. No Liability. In no event shall the LICENSOR be liable or responsible for injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or rented by LICENSEE, their officers, agents, employees, invitees or patrons occurring in or about the Property that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Property or any person whomsoever whether such damage or injury results from conditions arising upon the Property or upon other portions of the Property or from other sources. 31. Public Records. LICENSEE understands that the public shall have access, at all reasonable times, to LICENSOR contracts and all documents, records and reports maintained and generated pursuant to this Agreement, pursuant to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the LICENSOR and the public to all documents subject to disclosure under applicable law. 32. 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 LICENSOR government including the provisions of the Charter and Code of the LICENSOR. LICENSEE and/or its authorized agents shall also comply with reasonable directives of the City Manager. 33. Conflict of Interest. LICENSEE is aware of the conflict of interest laws of the LICENSOR (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 LICENSOR. 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 LICENSOR. 34. Compliance with Environmental Laws. LICENSEE represents and warrants that during the term of this Agreement, it will not use or employ the Property to handle, transport, store or dispose of any hazardous waste or substances and that it will not conduct any activity at the Property in violation of any applicable Environmental Laws. 35. The Sign Structure erected pursuant to this LICENSE shall not be used to advertise tobacco products, sexually explicit materials or products, exotic nightclubs or similar adult entertainment facilities, or illegal drugs. Notwithstanding the preceding, if in the LICENSOR's reasonable judgment, the advertising copy placed on the sign detrimentally reflects on the remainder of the property or LICENSOR, LICENSEE shall remove the offending copy at its sole expense with in ten (10) days of notice of same from LICENSOR. 36. 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. 37. 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 LICENSOR 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 LICENSOR 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 LICENSOR and LICENSEE. 38. 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. 39. Attorneys' Fees. In the event it becomes necessary to institute legal proceedings to enforce or interpret the provisions of this Agreement, other than a civil suit to collect a returned check as provided for by Florida Statutes, each party shall bear its own attorneys' fees through all trial and appellate levels. 40. 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 LICENSOR and LICENSEE entering into the subject transaction. 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. Amendments. No alterations, amendments or modifications hereof shall be valid unless executed by an instrument in writing by the parties with the same formality as this Agreement. Neither this Agreement, nor any term hereof, can be changed, modified, or abandoned, in whole or in part, except by instrument in writing, and no subsequent oral agreement shall have any validity whatsoever. 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 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. 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. 44. Headings. Title and section headings are for convenient reference and are not a part of this Agreement. 45. 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. 46. Authority. Each of the parties hereto acknowledge 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. 47. No Partnership. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venture of the other. 48. Joint Preparation. This Agreement is the result of negotiations between the parties and has been printed by one party for the convenience of both parties, and the parties covenant that this Agreement shall not be construed in favor or against either of the parties. END OF TEXT. SIGNATURES APPEAR ON FOLLOWING PAGE IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. CITY OF MIAMI By: City Manager Dated: , 2010. Attest: City Clerk Dated: , 2010. Approval as to form and correctness: Julie O. Bru, City Attorney Dated: , 2010. CLEAR CHANNEL OUTDOOR By: Its: Dated: , 2010. EXHIBIT A Legal Description to be provided RM:6786102:1 EXHIBIT B INSURANCE REQUIREMENTS SIGN LOCATION LICENSE (CLEAR CHANNEL OUTDOOR) Commercial General Liability (Primary & Non Contributory) Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 Endorsements Required City of Miami included as an additional insured Explosion, Collapse and Underground Hazard Contingent Liability (Independent Contractors Coverage) Contractual Liability Premises & Operations Liability Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 Endorsements Required City of Miami included as an Additional Insured Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit Payment and Performance Bond $ 50,000 City of Miami included as Loss Payee RM:6786102:1 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. RM:6786102:1 SIGN LOCATION LICENSE AGREEMENT I. Grant of License. The C1TY OF MIAMI, a municipal corporation of the'State of Florida ' (hereinafter called LICENSOR), hereby licenses and grants to CLEAR CHANNEL OU`1TDOOR (hereinafter called LICENSEE) the use of the "Licensed Premises" (as hereinafter defined) consisitjing of a portion of the • property located at ,401 NW 3rd AVE, Miami Police Dept, in the City of Miami, Conrlly of Miami -Dade, in the State of Florida (the "Property") (with free access over and across same) for the purpdse of erecting, constructing, installing, placing, replacing, operating, maintaining, servicing and removing I)CENSEE'S advertising sign(s) thereon, including supporting structures, illumination facilities and connectio {, back-up panels, service ladders and other appurtenances and ancillary equipment (the "Sign Structure"), 2. Description of Licensed Premises, The "Licensed Pre ises" shall consist of that portion of the Property where the supporting structure of the Sign Structure is or 01 be affixed to the ground, the surrounding area and the airspace above the same, as moreparticularly describyd on Exhibit A attached hereto and made a part hereof. In the event that the Sign Structure Is/are not constructyy6 as of the date of this License, then the Licensed Premises shall be located on the S/W portion of the Prope /in approximately the location described on Exhibit A. Upon completion of the construction of the Sign Struc e, the parties hereto agree to replace Exhibit A with a new exhibit describing the actual location of the Sign S eture and the Licensed Premises. 3. Access by LICENSEE. LICENSO grants to LICENSEE and/or its agents the right to vehicular and pedestrian ingress and egress to and from the ign Structure over and across the Property for (i) all purposes reasonably necessary for the erection, cons ction, installation, placing, replacing, operating, maintaining, servicing and removal of the Sign Structure,/ it) the right to provide or establish electrical power to the Sign Structure(s) (at LUCENSEE's sole expense) 6d (iii) the right to place incidental and ancillary equipment thereon. 4, Term. The initial to the "Term") of this License shall be through to be commensurate with the term of that o Settlement Agreement effective , by and between LICENSOR and LICENSEE, commenin on (the "Commeneement Date"). Upon expiration of the initial Term , this Xgreement may renew upon such terms as the parties may then determine. 5, Annual Lim; Fee, LICENSEE shall pay to LICENSOR an Annual License Fee of Eighty Thousand Dollars ($80,000.0) per year ("Base License Fee") or twenty percent (20%) of revenues derived as a resulrof this-icense-Agre f ent foryears•one,through-five'(1-5);.twenty.five percent (25%) for -years -six through . • • 10 (6-10), thirty percent//0%) for years eleven through fifteen (11-15), and thirty-three percent (33%) for the remaining term, whichAer is greater, The Base License Fee shall be payable in equal quarterly installments of Twenty Thousand D liars ($20,000,00) The first quarterly payment of the License Fee shall be due and payable (the "License Fee ommeneemont Date") five (5) business days after the earlier to occur of (a) one hundred twenty (120) day after a building permit for the Sign Structure has been issued or (b) the date that LICENSEE receives noticem LICENSOR that the Sign Structure has received its final inspection approval, Each payment thereafter shal /be made three months following the previous payment due date. Notwithstanding the foregoing, the License ee Commencement Date shall be extended one day for each day that LICENSEE is delayed in erecting thy Sign Structure as the result of an event of "Force Majeure" (as hereinafter defined). Within thirty (30) days after the anniversary of each License Fee Commencement Date, LICENSEE shall render LICENSOR with an/ccounting of revenues derived as a result of this License Agreement. If the accounting shows that the revenues were greater than the minimum amount due, LICENSEE shall make the appropriate percentage paymfnt, as described herein, to LICENSOR within ten (10) days thereof, Should the provisions of Paragraph 10 becoq a operative, or the Tenn of this License commences on some day other than the first of the month, all A fival License Fee paymehts required hereunder shall be prorated based upon a thirty (30) day month. The ap�iount of revenues shall be certified to the City by a certified public accountant. ��-, /0- a--� 6. Ownership of Licensed Premises, LICENSOR warrants that LICENSOR is the owner of the Property in fee simple, has full authority to make this Agreement and that there are no mortgages or similar I p 1 upon the Property, 7. Ownership of Sign, The Sign Structure, improvements and appurtenances thereto p)6ced on the Property hereafter by or for LICENSEE are LICENSEE'S trade fixtures and shall at all times rem ifi the property of LICENSEE, and LICENSEE shall have the right to remove the same at any time durin$githe Term of the License (as the same may be extended), or, for forty five (45) days after the expiration r"termination of the License (the "Removal Date"). If LICENSEE removes its Sign Structure, only the abov grade portions of said Sign Structure shall be removed. The'future existence of below grade improvements sh 11 not constitute continued occupancy of the Licensed Premises by LICENSEE, 1f upon the expiration of th erm (as the same may be extended) the parties hereto are engaged in good faith negotiation of the to s of a renewal license, then LICENSEE shall not be obligated to remove its Sign Structure from the Licens Premises until the later to occur of (I) the Removal Date, and (ii) thirty (30) days after the receipt of Hrittytt notice from LICENSOR expressly stating that LICENSOR does not desire to continue such renewal negotia 6n. 8. Termination by LICENSEE, In the event that () LICENSEE is unable to secure or maintain any required permit or license from any appropriate govemmepfal authority; (b) federal, state or local statute, ordinance regulation or other governmental action precludes 7/materially limits use of the Licensed Premises for outdoor advertising purposes; (c) LICENSEE's Sign Structure on the Licensed Premises becomes entirely or partially obstructed or destroyed; (d) the advertising va tfe of the Sign Structure is impaired or diminished by LICENSOR'S action; (e) there occurs a diversion of &ffie from, or a change in the direction of, traffic past the Sign Structure; (f) LICENSEE is prevented from aintaining electrical power to the Licensed Premises or illuminating its Sign Structure; (g) LICENSEE fi ds that, in LICENSEE'S reasonable opinion, the continued maintenance/operation of the Sign Structure i 4'mpractical or uneconomical due to engineering, architectural, construction or maintenance circumstances which will require structural improvements to LICENSOR's Property; (h) maintenance will be hampered or madp•unsafe due to conditions caused by nearby properties, land uses, or utilities, then LICENSEE shall, at its option, have the right to either reasonably abate the License Fee until the issues with (a) through (h) above are 90red, and/or terminate this License at no cost to LICENSEE upon thirty (30) days notice in writing to LICE gOR and LICENSOR shall refund to LICENSEE any License Fee payment paid in advance for the remainder o the unexpired term. 9. Utilities; Right fo Illuminate Sign. LICENSEE shall have the right at its sole expense to add any "undergroultd'Iitfes andyle4ommunicationsdevices necessary.to the'operation of the Sign. Structure: The LICENSEE shall maintaitya separate account with the appropriate utility companies for utility services. If LICENSEE is prevented by the LICENSOR from illuminating its Sign Structure, then as an alternative to the remedy in Paragraph 8( above, the LICENSEE may reduce the License Fee provided in Paragraph 2 above by 50%, with such reduggid License Fee to remain in effect so long as such condition continues to exist. LICENSEE agrees to pay all/ey6trical power costs used in conjunction with its sign, /Vi 10. sibility. It is the understanding of the parties that visibility of the Sign Structure to the traveling public is the essence of this License. LICENSOR shall not cause LICENSEE'S Sign Structure to be obscured fr9fn visibility to the traveling public, Upon LICENSEE'S request, LICENSOR shall promptly trim, cut, or remove brush, trees, shrubs, or any vegetation or remove any obstructions of any kind on the Property, or any other pr erty owned or controlled by LICENSOR, which limit or impair the visibility, maintenance or operation of the ign Structure. Should LICENSOR fail to act within ten (10) days of LICENSOR's request, LICENSEE shall/have the right to perform the required action itself, 11. Enjoyment. LICENSOR warrants that if LICENSEE shall pay the License Fee and otherwise cgmply with its obligations hereunder, LICENSEE shall and may peaceably and quietly have, hold and enjoy the l/tcensed Premises for the Term of this •License free from any disturbance by LICENSOR or anyone acting by, ;through and under LICENSOR, 12. Notices. All Annual •License Fees •to be paid pursuant to this License and all notices or other communications required or permitted hereunder shall be in writing and shall be delivered to the persons listed below: As to CLEAR CHANNEL OUTDOOR: with a copy to: To the City of Miami: with a copy to: T.ny E. Crapp, Jr, ity of Miami 3500 Pan American Drive Miami, Florida 33133 Telephone: (305) 250-5300 Julie 0. Bru, Esq. City Attorney City of Miami 444 S.W. 2"Avenue Suite 945 Miami, Florida 33133 Telephone: (305) 416-1800 Facsimile: (305) 416-1801 13, 'Parti 4 Bound; Assignment. This License shall be binding upon successors and assigns for the parties hereto and LJCENSOR agrees to notify LICENSEE of any change of (i)'ownership of the Property or the Licensed PremiseVor (ii) LICENSOR's mailing address within seven (7) days of such change. LICENSOR shall not assign its in arrest under this License or any part thereof except to a party who purchases the underlying fee title to the Prorty or the Licensed Premises and LICENSEE shall not assign its interest under this License or any part the oof except to an entity that controls, is controlled by, or under common control with, LICENSEE provided, Ip6wever, this sentence shall not preclude a collateral assignment of LICENSOR's or LICENSEE's interest u der this License to .an established financial institution as, and part of, a bonafide loan transaction nor shall _it Occlude an assignment by LICENSEE to any entity controlling, controlled by, or under control with, LICE (SEE. 3 14, Force Majeure. As used in thls Agreement, Force Majeure means a war, insurrection, hug flood, fire, casualty, act of God, unusually severe weather, court order or proceeding (including, but noylimited to, one in which the right of LICENSEE to erect or maintain a Sign Structure is contested, challenged or threatened) or shortage of labor or materials, in each case beyond the reasonable control and without ie fault of the Party claiming an excuse from performance. If any party shall be delayed in the perfotnce of any obligation hereunder, as a result of a Force Majeure, then the performance of' l i such obligation shae extended by the length of such delay. In response to and during any delay caused by a Force Majeure, an party seeking an excuse of performance due to such Force Majeure shall work diligently and in good faith t9/minimize the delay caused by such Force Majeure, 7 cane l5, Construction. The parties hereto have each carefully reviewed thi yLicense and have agreed to each tern set forth herein, No ambiguity is presumed to be construed against eitherrty. 16, Returned Check Fee, In the event any check is returned to e LICENSOR as uncollectible, the LICENSEE shall pay to the LICENSOR a returned check fee (the "Return Check Fee'') based on the following schedule: . Returned Amount $00,01 •50,00 $50.01 - 300.00 $300.01 — 800.00 OVER $800 Returned Check Fee $20.00 $30.00 $40.00 S% of the returned ount, Such Returned Check Fee shall constitute 5�oditional fees due and payable to the LICENSOR by LICENSEE, upon the date of payment of the delinqugtft payment referenced above. Acceptance of such Returned Check Fee by the LICENSOR shall not, constituj6 a waiver of LICENSEE's violations with respect to such overdue amount nor prevent the LICENSOR frpfn the pursuit of any remedy to which the LICENSOR may otherwise be entitled. In the event the LJCEI)SOR must institute a civil suit to collect a returned check, the LICENSOR shall be entitled to recover a reas Able attomey's fee as provided by Florida Statutes. 17. Late Payments, LICENSE hereby acknowledges that late payment by the LICENSEE to the LICENSOR of the Annual License Fee d other sums due hereunder will cause the LICENSOR to incur costs n'tit contemplated`byTthis:-Agreement- the-•exact-amount-•of-which-•will-•be•extremely-difficult-to-ascertain.. Accordingly, if any installment of the icense Fee or any other sum due from LICENSEE shall not be received by the LICENSOR within fifteen (15) ays after the date on which such sum is due, LICENSEE shall pay to the LICENSOR a late charge equal to ve percent (5%) of such overdue amount. The Parties hereby agree that such late charge represents a fair and/ easonable estimate of the costs the•LICENSOR. will incur by reason of late payment by LICENSEE. Acceg(ante of such late charge by the LICENSOR shall not constitute a waiver of the LICENSEE's default with respybt to such overdue amount, nor prevent the LICENSOR from exercising any of its other rights and remedies gra fed hereunder or at law or in equity. Except in the case here a late fee is paid by LICENSEE, any amount not paid to the LICENSOR 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 o such interest shall not excuse or cure any default by LICENSEE under this Agreement. 18. Taxes, CENSEE shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fee , governmental impositions, taxes or assessments (collectively "Assessment") levied against real or personal p operty of any kind, awned by or placed in, upon or about the Property by LICENSEE. Specifically, LIC SEE acknowledges that it shall pay any and all ad valorem taxes and use fees assessed on the Property by vi e of LICENSEE'S use•of the•Property as authorized herein. In the event LICENSEE appeals an Assessment, Lj ENSEE shall immediately notify the City Manager of LICENSOR or his/her authorized designee of its intenti)+'n to appeal said Assessment and upon the request of the City Manager and his/her authorized 4 designee shall furnish and keep in effect.a surety bond of a responsible and substantial surety that is reasonably acceptable to the LICENSOR or other security reasonably satisfactory to the City Manager or his/her authorized designee, in an amount sufficient to pay one hundred percent (100%) of the contested Assessment with all interef on it and costs and expenses, including reasonable attorneys' fees; to be incurred in connection withjtt. 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 within any applicable notice aft cure period shall constitute a default under this Agreement, 19. Licenses, Authorizations and Permits. LICENSEE shall obtain, or cause to b obtained, and maintain in full force end effect throughout the term of this Agreement, at its sole expe se, all licenses, authorizations and permits that are necessary for LICENSEE to conduct its commercial act hies, LICENSEE shall be responsible for paying the cost of said applications and obtaining said livens authorizations and permits, Notwithstanding the foregoing, LICENSOR shall use reasonable commercial efforts, at no out of pocket expense to itself, to assist LICENSEE in securing such licenses and permits, 20. This Agreement Not a Lease, This Agreement solely authorizes 1/1 ENSEE•to the temporary use of the Property for the limited purposes set forth herein and for no other purp6se. This Agreement confers no exclusive possession of the Property, and the LICENSEE cannot exclude LJICENSOR from the Property. The parties hereby agree that the provisions of this Agreement do not constiny e a lease, The rights of LICENSEE hereunder are not those of a tenant, but are a mere personal privilege to de/certain acts of a temporary character on the Property and to use the Property, subject to the terms of this Agre rficnt. The LICENSOR retains dominion, possession and control of the Property. Therefore, no lease interest i the Property is conferred upon LICENSEE under the provisions hereof. LICENSEE does not and shall not c tm at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of this A cement or its use of the Property hereunder, Additionally, except as provided herein to the contrary, LICE11 EE does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Prp�fierty by virtue of any expenditure of funds by the LICENSEE for improvements, construction, repairs, part•fions, or alterations to the Property which may be authorized by the City Manager or his/her designee. No ithstanding the foregoing, LICENSEE shall be entitled to make any claim available to it for its losses ag nst any duly authorized governmental entity (except LICENSOR) that takes the Licensed Premises or th Sign Structure thereon through an actual or threatened eminent domain proceeding. 21. Cancellation by Request of Either f the Parties Without Cause; Termination Fee. Either party may Ewncel'tlii Ageeentunt without -cause; that i ;'for convenience; aranytime, with-thirty(30)-days•prior written• notice to the non -cancelling party. This Agree ent that is extended to the LICENSEE is revocable -at -will by the LICENSOR, through its City Manager, ww1� thout the consent of .the LICENSEE, in accordance with this Agreement, In the event the LICENSOR c 6oels'this Agreement pursuant to this Paragraph 21 prior to the end of the term, LICENSOR shall pay a terming on fee to LICENSEE equal to, if within the first twelve (12) months following the "License Fee Commence ent Date", four (4) times the Annual License Fee due hereunder and LICENSEE shall be given a credit eq al to the Permit Fee paid for the construction of the Sign Structure; if within the second twelve months foil ing the "License Fee Commencement Date", three (3) times the Annual License Fee and LICENSEE shall be given a credit equal,to ninety percent (90%) of the Permit Fee paid; if at any other time during the term, two (2 times the amount of the prior years License Fee. LICENSEE's credit for permit fees may be applied at a aximum rate of Five Thousand Dollars ($5,000.00) per year against any fees that LICENSEE may owe LICE SOR at the time of cancellation or in the future until the credit is exhausted. In the event the LICENSEE cancel this Agreement pursuant to this Paragraph 21 prior to the end of the initial term, LICENSEE shall pay a termi Mimi fee to LICENSOR equal to, if within the first twelve (12) months following the "License Fee Commenc meet Date", four (4) times the Annual License Fee due hereunder; if within the. second twelve (12) mont following the "License Fee Commencement Date",three (3) times the "Annual License Fee"; and at any er time during the term, two (2) times the amount of the prior year's Annual License Fee, or through the time hen another company assumes the Sign Structure, whichever is less. The termination fee shall be paid on or before the day that this Agreement effectively terminates. If the cancellation is at the request of the LICE SOR and LICENSOR provides a substitute location owned by LICENSOR which is • acceptable to LICENSEE in its sole reasonable discretion, the termination fee shall be limited to LICENSEE'S costs associated with relocating the advertising structure to the new location (not to exceed S75,000)• If the cancellation is at the request of LICENSEE, the termination fee shall be reduced by any License Fee pald by another company for advertising on or within five hundred (500) feet of the Property within four (4) years of th termination date. 22. Termination for Cause. LICENSEE and LICENSOR each agree to abide by each and eery term and condition of this Agreement. If LICENSEE violates the term's, restrictions or conditions of this/Agreement, then the City Manager may give it thirty (30) days written notice within which to cease such violation or correct such deficiencies; provided, however, in the event the violation or deficiency is one which iS not reasonably susceptible of being cured within such thirty (30) day period, then LICENSEE shall have suyh`time to cure as is reasonable under the circumstances provided that LICENSEE is diligently pursuing' such cure. Upon LICENSEE's failure to do so after receiving such default notice, the City Manager m 'cancel this Agreement , upon giving ten (10) days written notice to the LICENSEE and thereafter the g?eement shall be deemed automatically canceled without the necessity for further action by the LICENSOy If LICENSOR violates the terms, restrictions or conditions of .this Agreement, then LICENSEE may. give jt thirty (30) days written notice within which to cease such violation; provided, however, in the event the viol9tion is one which is not reasonably susceptible of being cured within such thirty (30) day period, then LICENS1O'R shall have such time to cure as is reasonable under the circumstances provided that LICENSOR is diligently pursuing such cure. Upon LICENSOR's failure to do so after receiving such default notice, the Ll )✓NSEE may cancel this Agreement upon giving ten (10) days written notice to the LICENSOR and thereafter t '6 Agreement shall be deemed automatically canceled without the necessity for further action by the LICENSEE 23. Condition of the Property and Maintenance. LNSEE accepts the Licensed Premises "as is", in its present condition and state of repair condition and out any representation by or on behalf of the LICENSOR, and agrees that the LICENSOR shall, under no circumstances, be liable for any latent, patent or other defects in the Licensed Premises. LICENSEE sfj II provide all maintenance to the Licensed Premises. LICENSEE, at its sole cost, shall maintain the License Premises in good order and repair at all times and in an attractive, clean, safe and sanitary condition and sh I cause no waste or injury thereto, LICENSEE shall be responsible for all repairs to the Licensed Premises equired or caused by LICENSEE'S, use of any part thereof. THE LICENSOR DISCLAIMS ALL W RRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY FOR THE LICENSED MISES. LICENSEE agrees to make any changes necessary to the Licensed Premises relating to the use then of by LICENSEE at LICENSEE's sole cost and expense in order tto aTriplyWith"ali"City; Countyand-State•cod i•equirements•for LICENSEE'voccupancythereof: •• •---•.•'- ••• -• 24. 'Surrender Of Area or Prope . In either event of' cancellation or at the natural expiration of the term, LICENSEE shall peacefully surre der the Property in good condition and repair together with all alterations, fixtures, installation, addition and improvements which may have been made in or attached on or to the Property. Upon surrender, LICEN EE shall promptly remove all its personal property, trade fixtures and equipment and LICENSEE shall repel any damage to the Property caused thereby. Should LICENSEE fail to repair any damage caused to the Pro erty within ten (10) days after receipt of written notice from LICENSOR directing the required repairs, LICE SOR shall cause the Property to be repaired at the sole cost and expense of LICENSEE. LICENSEE shall pay (CENSOR the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of ch required repairs. At LICENSOR'S option, LICENSOR may require LICENSEE to restore the Propery so that the Property shall be as it was on the Effective Date. In the event LICENSE fails to remove its personal property, equipment and fixtures from the Property within the time limit set by he notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of e LICENSOR, but in no event shall said personal property, equipment and fixtures continue to be used as a § gn Structure. The LICENSOR, at its sole discretion and without liability, may remove . and/or dispose of same q4 LICENSOR sees fit, all at LICENSEE'S sole cost and expense. 6 25, 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 tif‘,..,,\ LICENSOR, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials, for any specific work Sri the Property nor as giving the LICENSEE the right, power or the LICENSOR to contract for or permit the re dering of any services or the furnishing of any materials that would give rise to the filing of any mechanics' liepg against the LICENSOR's interest in the Property if any mechanics lien shall at any time be filed against the P bperty, the LICENSEE shall cause it to be discharged of record within thirty (30) days after the date that it has otice of its filing. LICENSEE shall not be required to pay or discharge any mechanics' lien within the thirty (3 ) 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 con listed lien claim with all interest can it and costs and expenses, including reasonable attorneys' fees to be incurr d in connection with it. If LICENSEE does not I) cause a mechanics' lien to be discharged of record by court rder, payment or bonding.within thirty (30) days after the date.LICENSEE has notice of the filing of a lien or LICENSEE does not in good faith proceed to contest the lien by appropriate proceedings within the thirty ( ) day period, then LICENSEE shall be in default of the Agreement. 26. LICENSOR Access To Licensed Premises. The LICENSOR and its authorized representative(s) shall have at all times access to the Licensed Premises to (a) inspect the Licensed Pre uses, (b) to perform any obligations of LICENSEE hereunder which LICENSEE has failed to perform after ritten notice thereof to LICENSEE, LICENSEE not'•having cured such matter within ten (10) days of ch notice, (c) to assure LICENSEES compliance with the terms and provisions of this Agreement and all pplicable laws, ordinances, rules and regulations, and (d) for other purposes as may be deemed necessary by he City Manager or his/her authorized designee in the furtherance of the LICENSOR's corporate purp.se; provided, however, that LICENSOR shall make a diligent effort to provide at least 24-hours advance noti and LICENSEE shall have the right to have one or more of its representatives or employees present duri g the time of any such entry. Notwithstanding the foregoing, LICENSOR and its representatives shall have nright to and shall not climb upon the Sign Structure; any inspection shall be from ground level, The LICENSOR shall not be liable for any loss, cost or damage to the LICENSEE by reason of the exercise by the LICENSOR of the right of entry described herein for the purposes listed above, The making of periodic inspections o the failure to do so shall not operate to impose upon the LICENSOR any liability of any kind whatsoevenor relieve the LICENSEE of any reS oiisibility, obligations orliabilit assumed underthis-Agreement: • •.• •••- • 27. Safety. LICENSEE will allow LICENSOR inspectors agents or representatives the ability to monitor its compliance with safety precautions as required by federa , state or local laws, rules, regulations and ordinances. By performing these inspections the LICENSOR, its ag nts, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances, 10ENSEE shall have no recourse against the LICENSOR, its agents, or representatives from the occurrence, onoccurrence or result of such inspection(s), Upon issuance of a notice to proceed, the LICENSEE shall conta t the Risk Management Department to schedule the inspection(s), 28. Indemnification, LICENSEE shall indemnify, d fend at its own cost and expense and hold harmless the LICENSOR and its officials, employees and agents (co lectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, da ages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by real. n of any injury to or death of any person or damage to or destruction or loss of any property arising out of, res ting from, or in connection with (i) the performance or non-performance of the services contemplated by this greementto the extent it is or is alleged to be directly or indirectly caused, in whole or in part, by any act, ornj sion, default or negligence (whether active or passive) of LICENSEE or its employees, agents or subcontractors (collectively referred to as "LICENSEE"), or (ii) the failure of the LICENSEE to comply with any of the ections herein or the failure of the LICENSEE to conform to statutes, ordinances, or other regulations or req>i rements of any governmental authority, federal or, state, in i connection with the performance of this Agreement, provided however, that the indemnification obligatijos and releases in this Section do not apply to any matters arising as a result of or otherwise caused by the neg igencefIor willful misconduct of the LICENSOR or the unlawful acu or omissions of the LICENSOR. d�CENSEE expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and agains II liabilities which may be asserted by an employee or former employee of LICENSEE, or any of its su ontractors, as provided above, for which the LICENSEE's liability to such employee or former employee w uld otherwise be limited to payments under state Workers' Compensation or other similar laws. 29. Insurance. LICENSEE, at its sole cost, shall obtain and maintain in full for and effect at all times throughout the period of this Agreement, the insurance coverage as fully set forth in Ex 1bit B attached hereto and made a part hereof. 30. No Liability. In no event shall the LICENSOR be liable or respon l le for injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or reptesd by LICENSEE, their officers, agents, employees, invitees or patrons occurring in or about the Property di ( may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam,.electria gas, water,.rain, vandalism or theftwhich may leak or flow from or into any part of the Property, or from ttebreakage, 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 y user of the facilities or occupants of the Property or any person whomsoever whether such damage or in'(ry results from conditions arising upon the Property or upon other portions of the Property or from other sour es. 31. Public Records. LICENSEE understands that the ublic shall have access, at all reasonable times, to LICENSOR contracts and all documents, records and re orts maintained and generated pursuant to this Agreement, pursuant to the provisions of Chapter 119, F/ orida Statutes, and agrees to allow access by the LICENSOR and the public to all documents subject to disc 6sure under applicable law, 32. Compliance With Laws. LICENSEE nd/or its authorized agents agree to comply with all applicable laws, codes (including, but not limited to, th Florida Building Code as it may be amended), ordinances and regulations enacted or promulgated by federal, state, county,. and LICENSOR government including the provisions of the Charter and Code of the LICENEO . LICENSEE and/or its authorized agents shall also comply with reasonable directives of the City Manager. 33. Conflict of interest •LICENSEE i aware of conflict of interest laws of the LICENSOR. (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 S tes, and agrees that it.will fully comply in all respects with the terms of said laws and any future amendmen thereto. • LICENSEE further covenants t t no person or entity under its employ, presently exercising any functions or responsibilities in connecti n with this Agreement, has any personal financial interests, direct or indirect, with the LICENSOR. LICE SEE further covenants that, in the performance of this Agreement, no person or entity having such contlictiry interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the p ft of LICENSEE, its employees or associated persons, or entities must be disclosed in writing to the LICENS R, 34. Compliance with Environmental Laws. LICENSEE represents and warrants that during the term of this Agreement, it will not u e or employ the Property to handle, transport, store or dispose of any hazardous waste or substances and that will not conduct any activity at the Property in violation of any applicable Environmental Laws. / 35. The Sign Struct(tre erected pursuant tb this LICENSE shall not be used to advertise tobacco products, sexually explicit material/or products, exotic nightclubs or similar adult entertainment facilities, or illegal drugs. Notwithstanding the prededing, if in the LICENSOR's reasonable judgment, the advertising copy placed on the 8 sign detrimentally reflects on the remainder of the property or LICENSOR, LICENSEE shall remove the offending copy at its sole expense with in ten (10) days of notice of same from LICENSOR, 36. Time of Essence. 1t is expressly agreed by the parties hereto that time is of the essence with respdct to this Agreement, 1f the final day of any period falls on a weekend or legal holiday, then the final day of laid period or the date of performance shall be extended to the next business day thereafter. 37. Waiver. Any waiver by either party or 'any breach by either party of any one or 1719 a of the covenants, conditions or provisions of this Agreement shall not be construed to be a waiver of any sutfsequent or other breach of the same or any covenant, condition or provision of this Agreement, nor shall any ilure on the part of the LICENSOR to require or exact full and complete compliance by LICENSEE i h any of the covenants, conditions or provisions ofthis Agreement be construed as in any manner changing tr e terms hereof to prevent the LICENSOR from enforcing in full the provisions hereto, nor shall the terms ofithis Agreement be changed or altered in any manner whatsoever other than by written agreement of the LICEN • OR and LICENSEE. 38. Litigation. Any•dispute herein shall be resolved in the courts of Miami-D de County, Florida. The parties shall attempt to mediate any dispute without litigation. However, this i not intended to establish mediation as a condition precedent before pursuing specific performance, equitable injunctive relief. 39. Attorneys' Fees, In the event it becomes necessary to institut legal proceedings to enforce or interpret the provisions of this Agreement, other than a civil suit to collect returned check as provided for by Florida Statutes, each party shall bear its own attorneys' fees through all tria and appellate levels. 40. Waiver of Jury Trial. The parties hereby knowingly, j evocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any a Lion, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this reement or any amendment or modification of this Agreement, or any other agreement executed by and etween the parties in connection with this Agreement, or any course of conduct, course of dealing, statemp is (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a materi (inducement for the LICENSOR and LICENSEE entering into the subject transaction. 41. Third Party Beneficiary. This Agreement) solely for the benefit of the parties hereto and no third party shall be entitled to claim or enforce any rights her under. 42. Amendments. No alterations, amend nts or modifications hereof shall be valid unless executed by an instrument in writing by the parties with the sgg a formality as this Agreement. Neither this Agreement, nor any term hereof, can be changed, modified, or ISandoned, in whole or in part, except by instrument in writing, and no subsequent oral agreement shall have an validity whatsoever. 43. Severability and Savings Clause. It is the express intent of the parties that this Agreement constitutes a license and not a lease. Tofu - er this intent, the parties agree as follows: (i) if any provision ofthis Agreement, or the application thereof to y circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be int reted in the light most favorable to the creation of a license and (ii) if any provision of this Agreement, or t e application thereof to any circumstance, is determined by a court of competent jurisdiction to have create a lease rather than a license, then such provision shall be stricken and, to the fullest extent possible, the rem ping provision's of this Agreement shall not be affected thereby and shall continue to operate and remain in 1 force and effect. With regard to those pr visions which do not affect the parties intent for this Agreement, should any provision, section, paragraph, ntence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to. be jvalid; 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 tjconforrn with such laws, or if not modifiable, then same shall be deemed severable, 9 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. In the event that any non -material provision of this Agreement shall 12o.,, held to be invalid for any reason, such invalidity shall not affect the remaining portions of this Agreementnd the same shall remain in full force and effect. 44. Headings. Title and section headings are for convenient reference and are not /part of this Agreement. 45. Entire Agreement. This Agreement represents the entire understanding betwe fi the parties hereto as to the subject matter hereof, and supersedes all prior written oral negotiations, repre 6ntations, warranties, statements or agreements between the parties hereto as to the same. There are no promisg, terms and conditions, or obligations other than those contained herein, and no party has relied upon the stat9fnents or promises of the representatives of any party hereto. 46, Authority. Each of the parties hereto acknowledge it is duly author), to enter into this Agreement and that the signatories below are.duly authorized to execute this Agreement in their respective behalf, 47. No Partnership. Nothing contained herein shall make,, r be construed to make any party a principal, agent, partner or joint venture of the other, 48. Joint Preparation. This Agreement is the result of negotiations between the parties and has been printed by one party for the convenience of both parties, and the parties covenant that this Agreement shall not be construed in favor or against either of the parties, END OF TEXT. SIGNATURES APPEAR,ON FOLLOWING PAGE IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. CITY OF MIAMI LEAR CHANNEL OUTDOOR By: / By: City Manager Dated: , 20 Attest: City Clerk Dated: ,2011. Approval as to form an o correctness: Julie O. Bru, City A orney Dated: , 2011. Its: Dated: 10 , 2011, RM:6786102: EXHIBIT A Legal Description to be provided EXILIBIT B INSURANCE REQUIREMENTS /' SIGN LOCATION LICENSE (CLEAR CHANNEL OUTDOOR) Commercial General Liability (Primary & Non Contributory) Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit Products/Completed Operations Personal and Advertising Injury $ 2,000,009 $ 1,000,000 $i,00096o Endorsements Required /J City of Miami included as an additional insurggd Explosion, Collapse and Underground Hard Contingent Liability (Independent Contrarjlors Coverage) Contractual Liability Premises & Operations Liability Business Automobile Liability Limits of Liability Bodily Injury and Property mage Liability Combined Single Limit Any Auto/Owned Autos/ cheduled . Including Hired, Borro ed or Non -Owned Autos Any One Accident // $ 1,000,000 Endorsements Requi d • City of Miami} cluded•as•anAdditional-Insured. •• •• • Worker's Compensation Limits of Liao lity Statutory -St te of Florida Waiver of abrogation Employer's Liability imits of Liability $100,000 for bodily injury caused by an accident, each occident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit Payment and Performance Bond $ 50,000 City of Miami included as Loss Payee RM:67B61,02:1 J • r� The above policies shall provide the City of Miami with written notice of cancellation,6r material change from the insurer not less than (30) days prior to any such cancellation or material change, Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: 1 The company must be rated no Tess than "A-" as to management, and no/less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and for certificates of insurance subject to review and verification by Risk Management prior to insurance approval. .6786102:1