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HomeMy WebLinkAboutExhibit 1REVOCABLE LICENSE AGREEMENT ISSUED BY TIIE CITY OF MIAMI TO M & J CONSTRUCTION COMPANY OF PINELLAS COUNTY, INC. FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT 1 SW SOUTH RIVER DRIVE )\c/g MIAMI, FLORIDA, 33128 1 TABLE OF CONTENTS RECITALS 1 1. Definitions 2. Purpose 3 3. Interest Conferred by this A.m.-eement 3 4. Occupancy and Terre. 4 5. Continuous Duty to Operate. 4 6. Use Fees. 4 7. Late Fee 4 .8. Returned Cheek Fee. 5 9. Security Deposit. 5 10. Adjustment to Use Fee and Security Deposit. 6 11. Services and Utilities. 6 12. Condition of the Property 7 13. Alterations, Additions or Replacements. 8 14. Violations, Liens, and Security Interests. 9 1.5. City Access to Facility 10 16. Indemnification And Hold Harmless 10 17. Insurance. • 11 18. No Liability. 12 19. Risk of Loss. 12 20. . Safety. 13 21. Taxes and Fees 13 22. Cancellation by Request of Either of the Parties Without Cause. 13 23. Termination by City Manager for Cause. 14 24. Notices. 1.4 25. Advertising 15 26. Hazardous Materials. 15 27. Radon Gas. 16 28. Licenses. Authorizations and Permits 17 29. . Compliance with All Applicable Laws 17 30. Ownership of Improvements 17 31. Surrendet of Property 17 32. Severability. 18 33. Invalidity. 19 34. No Assignment or Transfer 19 3�. Public Records. 19, 36. Conflict of Interest. 19 37. Americans with Disability Act _20 38.. Nondiscrimination 20 39. Amendments and Modifications. 40. .Litigation; Venue; Attomey's Fees. 20 4.1.. Waiver -of Jury Trial. 21 i 42. Waiver 21 43. Time of Essence. 21 44. No Interpretation Against Draftsmen 2? 45. Further Acts. ?2 46.. Third Party Beneficiary 22 47. No Partnership. 22 48. Headings. 22 49. Authority. 22 50. Entire Agreement. 23 51. Special Provisions. 23 EXHIBIT A 2 5 PROPERTY LOCATION MAP 25 EXHIBIT B 26 LEGAL DESCRIPTION OF PROPERTY 26 EXHIBIT C i LNSUR4NCE REQUIREMENTS 27 EX.HI.BIT "D" 29 LIST OF EQUIPMENT/MATERIALS 29 TO BE STORED ON PROPERTY 29 EXHIBIT "E" 30 CONDITIONS OF USE FOR OCCUPANCY 10 ii REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is made this day of 2012 ("Effective Date") between the City of Miami ("City") a municipal corporation of the State of Florida and M & J Construction Company of Pinellas County, Inc., a Florida for profit corporation (the "Licensee"). RECITALS WHEREAS, the City owns a property located at 1 SW South River Drive, Miami, Florida; and WHEREAS, the City and Licensee ("Parties") desire and intend to enter into a Revocable License Agreement ("Agreement"); and WHEREAS, the City is authorized to enter into this Agreement pursuant to City Commission Resolution # adopted , 2012; 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 is subject to the audit and inspection rights set forth in §18- 100 to § 18-102, City Code, as it maybe amended; and :-WHEREAS, this Agreement permits only certain,. enumerated, specific, •.listed permitted uses, and does not permit anything further. NOW. THEREFORE, in consideration of the mutual covenants set forth herein, the parties hereby agree as follows: ,The.foregoing recitals are hereby incorporated and made a part of this Agreement. 1. Definitions. A. "City Manager" is the City Manager for the City of Miami. B. "Director" shall mean the Director of the City of Miami's Department of Public Facilities. C. "Effective Date" shall mean the date as defined in the opening paragraph of this Agreement. D. "Hazardous Material Laws" means all applicable requirements of federal, state and local enviromnental, public health and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of: the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response,. Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Enviromnental Reorganization Act of 1975. E. "Permitted Uses" shall mean the use of the subject City -owned property primarily and principally for construction staging, storage of light construction equipment and materials as defined in Exhibit "D" for the Flagler Street Bridge Project (Contract Number E6H12 SR 968 over Miami River) and for no other purposes whatsoever without the prior written consent of the City Manager which may be withheld or conditioned at the discretion of the Manager. No fill, soil or dredged materials may be placed or stored on the Property. F _ "Property7,shall mean the city -owned real property and improvements containing approximately 7,436 square feet at 1 SW South River Drive, Miami, Florida, as More -..'particularly described in Exhibit "A": attached hereto .and -made a• part hereof. 2. Purpose. The City is the owner of the Property. The City has expressed its. desire to assist the Licensee in accomplishing its purpose to facilitate construction staging for the Flagler Street Bridge Project and to occupy and use the Property for the Permitted Use, under the conditions set forth in this Agreement and its Exhibits. . The use of the Property is strictly limited to the Permitted Uses and is not to be used for any other purpose whatsoever. Any use of the Property not authorized under the Permitted Uses must receive the prior written consent of the City Manager, or his/her authorized designee, which consent may be withheld, denied, or conditioned for any or no reason, including, but not limited to additional financial consideration. 3. Interest Conferred by this Agreement. This Agreement confers no exclusive possession or tenancy of the Property. The Licensee cannot exclude the City from the Property. This Agreement solely authorizes Licensee to the temporary use of the Property for the limited purposes set forth herein and for no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease and further do not create a Landlord/Tenant relationship.. 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 tenns.of this Agreement. The City retains dominion, possession and control of the Property. Therefore, no lease interest or leasehold estate in the Property is conferred upon Licensee under the provisions hereof. Licensee does not and shall not claim at any time any interest or estate of any kind or•extent whatsoever in the Property by virtue of this Agreement or its use of the Property hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions, or alterations to the Property which may be authorized byYthe Crty 4. Occupancy and Term. This Agreement is revocable -at -will by the City acting by its City Manager. Unless this Agreement is revoked or terminated as provided in this Agreement, this Agreement shall commence upon the Effective Date and shall expire automatically twelve (12) months after the Effective Date ("Initial Term"). The City Manager is hereby authorized to exercise any month - to -month extensions of this Agreement, which may granted be at his/her sole discretion and may be subject to additional consideration. Any extensions hereof shall be subject to the same terms and conditions of this Agreement, except as provided in Paragraphs 6 and 10 below, and must be confirmed by a written instrument signed by the parties. 5. Continuous Duty to Operate. Except where the Property is rendered unusable by reason of fire or other casualty, Licensee shall at all times during this Agreement, occupy the Property upon the Effective Date and shall thereafter continuously conduct operations in the Property in accordance with the terns of this Agreement. 6. Use Fees. A. Monthly Use Fee Commencing on the Effective Date of this Agreement, and on the first day of each month thereafter during the tenn of the Agreement, Licensee shall pay to the City a monthly Use Fee of Two Thousand Four Hundred Seventy Nine Dollars and 0/100 (S2,479.00), or $4.00 per square foot, plus State of Florida Sales and Use Tax, if applicable, for the License to use the City's Property. If Licensee elects to renew the License beginning on the first renewal option period, the City Manager has the right to increase the monthly Use Fee based at a rate of ten percent . (10%)_.each renewal year, as more specifically stated in Paragraph 10 herein. 7. Late Fee. in -the event anyinstallment of the monthly Use Fee .is not received .by:Cityon-or before the tenth (106)-day, 'of the month, Licensee shall pay to City a late chiarge in ari"amount equal to- one percent (1 %) of the respective Use Fee. Such late fee shall constitute additional fees due and 4 payable to City by Licensee upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 8. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule; Returned Amount Returned Check Fee S00.01 - 50.00 S20.00 S50.01 - 300.00 $30.00 S300.01 - 800.00 S40.00 OVER $800 5% of the returned amount. The Returned Check Fee shall constitute additional fees due and payable, to City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 9. Security Deposit. Licensee shall provide a Security Deposit in the amount of Four Thousand, Nine Hundred and Fifty -Eight Dollars and 00/100 ($4,958.00), which is equal to two months monthly Use Fee ("Security Deposit"). If Licensee is in violation beyond any applicable notice or cure period, the City may use, apply or retain all or any part of the Security Deposit for the payment of (i) any fee or other sum of money which Licensee was obligated. to pay;but did not pay, sum -expended by City on :Licensee's behalf in _accordance with the provisions of this ,Agreeinent; or (iii-)' any 'urn 'which City may expend or be required to expend as a result of --Licensees violation: :Should -the City use, apply or retain all or any part of the Security Deposit, :Licensee shall- reimburse:the-:amount used, applied or retained within fifteen (15) days of the 5 City's application of the Security. The use, application or retention of the Security Deposit or any portion thereof by the City shall 'not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. Provided Licensee is not in violation of this Agreement, the Security Deposit or balance thereof, as the case may be, shall be returned to Licensee after the expiration date or upon any later date after which Licensee has vacated the Property in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Security Deposit (or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect to the Security Deposit. Licensee shall not be entitled to receive any interest on the Security Deposit. 10. Adjustment to Use Fee and Security Deposit. If Licensee elects to renew the License after the Initial Tenn, the City has the right to increase the monthly Use Fee and Security Deposit based at a rate of ten percent (10%) for each renewal tern. Nothing in this paragraph shall be construed to grant Licensee the right to use the Property for a teen greater than that defined in Paragraph 4 herein. 11. Services and Utilities. A. Licensee's Responsibilities. Licensee, at its sole cost and expense, shall pay for all utilities which may include, but is not limited to, electricity, water, store water fees, gas, telephone, television, cable, telecommunications, intereet, garbage and sewage disposal used by Licensee during its occupancy of the Property, as well as all costs for installation of any lines and equipment necessary, except those utilities specifically set forth in Subparagraph 1.1B.below-to.beprovided: • by City, if applicable..Licensee,. at its sole cost, shall install, as applicable, all utilities required _for:its use; and : arrange for direct utility billing from all applicable utility companies for such services. The -City ;is: -not a guarantor or in -any manner responsible: for. -payment of Licensee's responsibilities as they are set forth in this Agreement. 6 Licensee, at its sole cost and expense, shall provide cleaning and janitorial services and hire pest and tennite..control services for the Property, as, needed, to insure that the Property will at all times be in a clean.and sanitary condition and.free from vermin. Licensee agrees to provide any and all security it deems necessary to protect its operations and equipment. Licensee shall insure that all appropriate equipment and lights have been turned off and appropriate doors locked at the close of operations within the Property each day. Licensee shall be responsible to take prudent preventive maintenance measures to safeguard the Property from stonns and other "Acts of God" as that teen is defined by Florida law. B. City's Responsibilities. The City reserves the right to interrupt, curtail or suspend the provision of any utility service provided by it, including but not limited to, heating, ventilating and air conditioning systems and equipment serving the Property, to which Licensee may be entitled hereunder, when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the judgment of City desirable or necessary to be made or due to difficulty in obtaining supplies or labor or for any other cause beyond the reasonable control of the City. The work of such repairs, alterations or improvements shall be prosecuted with reasonable diligence. The City shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility service to Licensee or for any limitation of supply resulting from governmental orders or directives. Licensee shall not claim any damages by reason of the City's or other individual's interruption, curtailment or suspension of a utility service, nor shall the Revocable License or any of Licensee's obligations hereunder be affected or reduced thereby. 12. Condition of the Property. .Licensee accepts the Property "as is", in its present condition state of repair, and . ,. without:any representation or affirmation by or on. behal"f of City, aiid agrees "that -City S ally" T.:under no: circumstances; be_ liable .for any latent, patent or other defects in -the ---Property. • Licensee, at its sole -cost, •shall maintain the Property 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:. 7 Licensee shall be responsible for all repairs to the Property required or caused by Licensee's use of part thereof. Licensee agrees to make all changes necessary to the Property at Licensee's sole cost and expense in order to comply with all City, County and State code or similar statutory requirements for Licensee's occupancy thereof. 13. Alterations, Additions, or Replacements. Except in the event of an emergency, Licensee shall not make any repair without first receiving the written approval of the City Manager, or his/her authorized designee, which approval may be conditioned, denied, or withheld for any or no reason whatsoever, including a condition to pay additional fees if such alteration will affect the cost of services being provided by the City. If the City Manager or his/her designee approves such request, no repair or alteration shall be commenced until plans and specifications therefore shall have been submitted to and approved by the City Manager or his/her designee. The Licensee shall be solely responsible for applying and acquiring all necessary permits, including but not limited to, building permits. The Licensee shall be responsible for any and all costs associated with any alterations including, but not limited to, design, construction, installation and permitting costs. All alterations to the Property, whether or not by or at the expense of the Licensee, shall, unless otherwise provided by written agreement of the parties hereto, immediately upon their completion become the property of the City and shall remain and be surrendered with the Property. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify City of such work. All alterations must be in compliance with all statutes, laws, codes, ordinances and regulations of the State of Florida, Miami -Dade County, City of Miami and any other agency that may have jurisdiction over the Property as they presently exist and as they may be amended hereafter. • In the event of_an emergency,- Licensee shall reasonably proceed -to perform such repair • work -and shall _immediately notify the City Manager or his/her designee of such work. 8 14. Violations, Liens, and Security Interests. The Licensee shall not suffer or pen -nit any statutory, laborers, material person, or construction liens to be filed against the title to the Property, nor against any Alteration by reason of work, labor, services, or materials supplied to the Licensee or anyone having a right to possession of the Property. Nothing in this Agreement shall be construed as constituting the consent or request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or material person for the performance of any labor or the furnishing of any materials for any specific Alteration, or repair of or to the Property nor as giving the Licensee the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any construction liens against the Property. If any construction lien shall at any time be filed against the Property, the Licensee shall cause it to be discharged of record within fifteen (15) days after the date the Licensee acquires knowledge of its filing. If the Licensee shall fail to discharge a construction lien within that period, then in addition to any other right or remedy available to the City, the City may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court of bonding or other acceptable form of security in lieu thereof. Additionally, the City may compel the prosecution of an action for the foreclosure of the construction lien by the lienor and pay the amount of the judgment, if any, in favor of the lienor (with interest, costs and allowances), with the understanding that all amounts paid by the City shall constitute additional payments due and payable under this Agreement and shall be repaid to the City by the Licensee immediately upon rendition of any invoice or bill by the City. The Licensee shall not be required to pay or discharge any statutory, laborers, supplies, material persons or construction lien so long as (i) the Licensee shall in good faith proceed to contest the lien by appropriate proceedings, (ii) the Licensee shall have given notice in writing to the City of its intention to contest the validity of the lien, and (iii) the Licensee shall furnish. and keep in effect -a surety bond of a responsible and substantial. surety company . reasonably, • acceptable to the City orother security reasonably satisfactory to the City in an amount sufficient 'to pay one -hundred fen -percent (110%) of the amount of The contested lien• claim with all interest •:on it and_ costs and expenses, including reasonable attorneys' fees, to be incurred in connection 'therewith: Licensee further agrees to hold City harmless from, and to indemnify, the :City against; :-_:any. and all .claims, demands .and expenses, including reasonable attorney's fees, by reason of any claims of any contractor, subcontractor, material person, laborer or any other third person with whom Licensee has contracted or otherwise is found liable for, in respect to the Property. 15. City Access to Facility. Licensee, at its sole cost and expense, may duplicate or change key locks to the Property but not until first receiving written approval from the Director for such work. In the event Licensee changes key locks as approved by the Director, Licensee, at its sole cost and expense, must also provide to City a copy or copies of said keys, if more than one copy is required. The City shall have access to and entry into the Property, at any time to (a) inspect the Property, (b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, Licensee not having cured such matter within ten (10) days of such notice, (c) to assure Licensee's compliance with the terns and provisions of this Agreement and all applicable laws, ordinances, codes, rules and regulations, (d) to show the Property, inclusive of the Property, to prospective purchasers or tenants, and (e) for other purposes as may be deemed necessary by the City Manager in the furtherance of the City's corporate/municipal purposes, provided, however, that the City shall make a diligent effort to provide at least 24-hours advance written 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 officials, employees 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. - 16. Indemnification and Hold Harmless. Licensee shall indemnify; defend, save and hold harmless- the City and its officials, employees and agents._ (collectively referred to as "Inderrriitees" ).;arid= -each of'stheii 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. or. destruction or loss of any property arising out of, resulting from, or p dmor in 10 connection with (i) the performance or non-performance by the Licensee of the services, occupancy or use contemplated by this Ag eeinent 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 refen-ed 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, unintentional omission or default or the negligence (whether active or passive) of the Indernnitees, or any of them; (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, codes; rules, or. other regulations_ or. requirements of any governmental authority, federal, local, or state, in connection with the performance or breach of this Agreement. Licensee expressly agrees to indemnify and hold hannless 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 Workers' Compensation or similar laws. Licensee further acknowledges that, as lawful consideration for being granted the right to utilize and occupy the Property, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Property unless said legal liability is found to be caused, in whole or in part, to an intentional act of an Indemnitee. This Section shall survive the cancellation or expiration, as applicable, of this Agreement. This section shall be interpreted to comply with any provision of §725.06, Fla. Stat. detennined to be applicable by a court of competent jurisdiction. 17. Insurance. Licensee, at its sole cost, shall obtain and maintain in full force and effect at all times throughout the period of this Agreement, the insurance as set_ forthin Exhibit "C attached hereto and made a part hereof. 11 18. No Liability. In no event shall the City be liable or responsible for' injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or rented by Licensee, its officers, agents, employees, invitees or patrons occurring in or about the Property that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Property or any person whomsoever whether such damage or injury results from conditions arising upon the Property or upon other portions of the Property or from other sources. Licensee indemnifies the City its officers, agents and employees from and against any and all such claims even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, or officials. Licensee further acknowledges that as lawful consideration for being granted the right to utilize and occupy the Property, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for property damage resulting from Licensee's use of the Property. 19. Risk of Loss. Licensee understands and agrees that the City shall not be liable for any loss, injury or • damage to any personal property or equipment brought unto the Property by the Licensee or by anyone whomsoever, during the time that the Property is under the control of or occupancy by the Licensee. All personal property placed or moved in the Property shall be at the risk of __. Licensee or the owner thereof. Licensee further agrees,'fliat-:it..sliall-.bel:responsible .to._i rovide c . L::.:.securitywhenever.personal property either owned or used`;by.the.Licensee;.: its'.eniPloyees,=agents ..-.,: •: !:or subcontractors is -placed 7 in the Property, including any property or equipment necessary -for set-up -and -dismantle,. whether or not the Property is open to the general public. 12 20. Safety. Licensee will allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Licensee shall have no recourse against the City, its agents, or representatives from the occurrence, non- occurrence or result of such inspection(s). Upon issuance of a notice to proceed, the Licensee shall contact the Risk Management Department at (305) 416-1800 to schedule the inspection(s). 21. Taxes and Fees. Licensee shall pay before any fine, penalty, interest or costs is added for nonpayment, any and all charges, fees, taxes, impositions or assessments levied against the Property (collectively Assessments), and/or against personal property of any kind, owned by or placed in, upon or about the Property by Licensee, including, but not limited to, ad valorem taxes, fire fees and parking surcharges. In the event Licensee appeals an Assessment, Licensee shall immediately notify the City Manager of its intention to appeal said Assessment and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City Manager, or his designee, or other security reasonably satisfactory to the City Manager, or his designee, in an amount sufficient to pay one hundred percent (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. 22. Cancellation by Request of Either of the Parties Without Cause. Either party may cancel this Agreement at any time, without cause, for convenience, by giving thirty (30) days written notice to the non -canceling party prior to the effective date of the cancellation. The parties shall have no recourse against_ the other -for a cancellation under this`" Section'o:ther than _the:Licells ee must pay the Use Fees dueoil"Of- befoietlie cancellation date -and :perform any: other: contractual; . commitments made in this Agreement such- as restoration of the property on or before the cancellation date. 13 23. Termination by City Manager for Cause. If, at the sole and complete discretion of the City Manager, Licensee in any mariner violates the restrictions, terms -and conditions of this Agreement, then, and in the event, after ten (10) days written notice given to Licensee by the City Manager within which to cease such violation or correct such deficiencies, and upon failure of Licensee to do so after such written notice within said ten (10) day period, this Agreement shall be automatically cancelled without the need for further action by the City. Upon such automatic cancellation, Licensee shall abide by the terms of Paragraph 31 herein. 24. Notices. All notices or other communications which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to City and Licensee at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier: CITY OF MIAMI City of Miami Office of the City Manager 444 SW 2 Avenue, 10t1i Floor Miami, FL 33130 WITH COPIES TO Director City of Miami Department of Public Facilities 444 SW 2 Avenue, Suite.325 Miami, FL 33130 LICENSEE Mr. Nick Kokkinos, President M & J Construction Company of Pinellas County, Inc. P.O. Box 698 809 Safford Avenue Tarpon Springs, FL. 34688-0698 14 City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, FL 33130. 25. Advertising. • Licensee shall not permit any signs or advertising matter except as required by law, to be placed either in the interior or upon the exterior of the Property without having first obtained the approval of the Director or his designee, which approval may be withheld for any or no reason, at his sole discretion. Licensee shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Licensee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the Miami -Dade County and City of Miami Sign Codes, Zoning Codes and Zoning Ordinances. Upon the cancellation of this Agreement, Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Property. If any part of the Property is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect o.r .place upon the Property an appropriate sign, plaque or historic marker indicating City's having issued this Agreement. 26. Hazardous Materials. The-Licensee_Shai"1; •at its sole. cost and expenseZaCalt tines and, in all respects comply with -all -federal; state andlocal laws, statutes, ordinances and regulations, rules. rulings, policies, orders and 'administrative actions and orders relating -to hazardous materials ("Hazardous Materials." Laws"'), including, without limitation, any Hazardous Materials Laws relating to 15 industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any. "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances" (collectively "Hazardous Materials"), under any such laws, ordinances or regulations. The Licensee shall, at its sole cost and expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Property or required for the Licensee's use of any Hazardous Materials in or about the Property in confounity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon cancellation or revocation of this Permit, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Property by the Licensee or at the Licensee's direction, to be removed from the Property and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. 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 Paragraph of the License shall survive the cancellation or revocation of this License. The City represents that: To - the best of its knowledge there are no environmental violations, whether under federal, state, or local laws, existing on the Property; To the best of its knowledge there are no Hazardous Materials presently existing on the Property. 27. 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'beeti fouiid `in builduigs i i 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 Property for 16 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. 28. Licenses, Authorizations and Permits. Licensee shall obtain, or cause to be obtained, and maintain in full force and effect throughout the tern of this Agreement, at its sole expense, all licenses, authorizations and permits, including, without limitation, a City Occupational License, 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 peiniits. 29. Compliance with All Applicable Laws. Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local laws, codes, ordinances and regulations is a condition of this Agreement, and 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. 30. Ownership of Improvements. As of the Effective Date and throughout the use period, all buildings and improvements thereon shall be vested in City. Furthermore, title to all Alterations made in or to the Property, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Property. 31. Surrender of Property. In : either- event of Cancellation pursuant to Paragraph` 22"or"Paragraph 23 -or expiration. of.:the :time limited • by the notice, Licensee shall peacefully surrender the Property broom clean and in- good condition and repair together with all alterations, fixtures, installation, additions ..and 'improvements -*which may have been made -in or attached on. or to the Property. 17 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 City directing the required repairs, City shall cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. At City's option, City may require Licensee to restore the 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 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. 32. Severability. It is the express intent of the parties that this Agreement constitutes a license and not a lease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent 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 of phiase..conitained in this.Agreement_„ .. be . determined . by a._.:court of . competent jurisdiction to be - invalids illegal or otherwise unenforceable under the laws of the State of Florida 'or the City of Miami, such 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 18 in either event, the remaining terms and provisions of this Agreement shall remain uiunodified and in full force and effector lulutation.of its.use.. • 33. Invalidity. In the event that any non -material provision of this Agreement shall be held to be invalid for any reason, such invalidity shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. 34. No Assignment or Transfer. Licensee cannot assign or transfer its privilege of occupancy. and use granted unto it by this Agreement. Any assignment, sale or disposition of this Agreement or any interest therein by Licensee shall result in the automatic termination of this Agreement without notice by the City Manager. 35. 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. 36. Conflict of Interest. Licensee is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-1 l.1 et. seq.) and of . the State of Florida as set forth in the Florida Statutes, as amended, and agrees that it will fully comply in all respects with the terins of said laws and any future amendments thereto. Licensee . covenants that no ._person or'.; entity under its employ, ..presently exercising . any.:.:functions..or. . responsibilities in connection with this Agreement, has any.personal financial'interests; direct or •indirect, with the City. Licensee further covenants that, in the performance of this•Agreement, no: person or entity having such_ conflicting interest shall be utilized in respect to services !provided ,hereunder.,: —Any such conflict of interest(s) on the part • of Licensee, its employees or n,—.,associated persons, or entities must be disclosed in writing to'the City. 19 37. Americans with Disability Act. Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, . Licensee shall take affirmative steps to ensure nondiscrimination in employment of disabled persons. 38. Nondiscrimination. In the performance of this Agreement or any extension thereof, Licensee and/or its authorized agents shall not discriminate in connection with its occupancy and use of the Property and improvements thereon, or against any employee or applicant for employment because of sex, age, race, color, religion, ancestry or national origin. Licensee and/or its authorized agents will take affirmative action to insure that minority applicants are employed and that employees are fairly treated during employment without regard to their sex, age, race, color, religion, ancestry, marital status, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. 39. Amendments and Modifications. No amendments or modifications to this Agreement • shall be binding on either party unless in writing, approved as to fore and correctness by the City Attorney, and signed by both parties. The City Manager is authorized to make non -substantive amendments' or modifications to this Agreement as needed. 40. Litigation; Venue; Attorney's Fees. Anydispute°or civil action herein shall be resolved in the courts of Miami -Dade. County, Florida. :.The parties:shall first -attempt .to mediate any dispute without litigation. In mediating -any-such dispute .the• standards -and procedures of set forth in Chapter 44, Florida Statutes, Mediation Alternatives • to Judicial Action", as amended, will apply: -However, this is not 20 intended to establish mediation as a condition precedent before pursuing an appropriate civil action such as specific performance, equitable or injunctive relief. Each party shall bear its own attorney's fees in any civil action, mediation, or other proceeding. 41. Waiver of Jury Trial. The parties hereby knowingly, irrevocable, 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. 42. Waiver. Any waiver by either party or any breach by either party of any one or more of the covenants, conditions or provisions of this Agreement shall not be construed to be a waiver of any subsequent or other breach of the same or any covenant, condition or provision of this Agreement, nor shall any failure on the part of the City to require or exact full and complete compliance by .Licensee with any of the covenants, conditions or provisions of this Agreement be construed as in any manner changing the teens hereof to prevent the City from enforcing in full the provisions hereto, nor shall the terms of this Agreement be changed or altered in any manner whatsoever other than by written agreement of the City and Licensee. 43. Time of Essence. It is _expressly agreedby.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 br the date. of perfonnance shall be extended to the next business day thereafter. 21 44. No Interpretation Against Draftsmen. The parties agree that no provision of this Agreement shall be construed against any particular party and each party shall be deemed to have drafted this Agreement. 45. Further Acts. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by the parties, the parties each agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered any and all such further acts, deeds and assurances as may be necessary to consummate the transactions contemplated hereby. 46. 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. 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. Headings. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 49. Authority. Each of.the_parties hereto acknowledges it is duly authorized to enter into this Agreement and that the signatories below are dulyauthorized to execute this Agreement in.their:respective behalf. 22 50. 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. 51. Special Provisions. a. This Agreement is the result of negotiations between the parties and has been typed or printed by one party for the convenience of both parties, and the parties covenant that this Agreement shall not be construed in favor of or against either of the parties. b. Licensee shall list all equipment and materials to be stored on the Property in Exhibit "D" attached hereto and incorporated herein. c. Licensee shall comply with the Conditions of Use for Occupancy described in Exhibit "E" attached hereto and incorporated herein. d. Licensee shall demolish the illegal dock located on the riverfront portion of the Property at its own cost and expense in consideration for the use of the Property. 23 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: By: Priscilla A. Thompson,C.M.C. Johnny Martinez, P. City Clerk City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis, Director Department of Risk Management WITNESS: Julie O. Bru City Attorney M & J CONSTRUCTION COMPANY OF PINELLAS COUNTY, INC., A FLORIDA CORPORATION By: By: By: Signature Signature Print Name Print Name Nick Kokkinos President Signature Print Name Date 24 4_ I t EXHIBIT A PROPERTY LOCATION MAP �. Yr�'$i�'nn ;:.� t`.§t;r�.me..� ...: +•. ..vt, a .-.6`Z't, .. � �`':.�Err-.a,.t:r. r�:��. i, .fie N.W • l st STREET \ 1 • \1\1 \. 1 , ` \\, • \ 1••\ \\ \ 3 1 �'\ 'fir, yC 3 \•\ i t \, ' KNO L lCN S \/ P.F \'%v' `ST r rF� 1 FLAT GTY OF MIA.1,1.caf" �_yr ' \ �\ \, AS \'EnSratL•• it�,i7-CF-WAY UPC I • �� ( .2. G Pu. 41% 1\ �.. � r —r. AS A_'E PLAT =1: G, PG, 1 — _ ^— SHOCK 10 5 '�' r.-� - -r. jr'y \'` WEST FL:4GLER STREET FT:12 PLAT EM!C 13, PG. Al 11 it L__ 1 --1 — -- 3 i \\\ `\\ v.; \SOT SUeDI VIDFD \\ aLCjCK 11 S \ \ �.'\ •f,� \ �C5 \ t 14 . 1 tr•\ �� \ "f..L, h:h'=??\'=• --\ �\ r t\%, �, ,,1 \\ PLAT ',CITY tG- Ni A 4I . \ '\ ' 7,- • 1 %\ ti \ r c 1 I 1 Y r • \ , \ \t ' \ \ 1 \1 \ \\ • 25 EXHIBIT B LEGAL DESCRIPTION OF PROPERTY Tn❑t parcel of land bounded on the North and the South by the right—of—wcy lines of West Flooler Street, on the Eost by the irliorn River and on the west by South River Drive,. lying and being in City of Miami, Miami —Dolt County, Florida, more particularly described by metes and bounds as follows: Car„msnce of c monument which is ?ire intersection cf the monument lines of N.W. 1st Street and N.W. South River Drive as shown on the Municipal City of Miami Ades Sheet Number 35Z or the Public Records of City of Miami: thence 535'55'44'E, along sold monument lire of N.W. South River Drive, a d'.stonce of 396.30 feet to intersect with the Easterly projection of the South line of Block 10 South of "A.L. KNOWLTON'S FLAT CfTY OF MI.Ai,4 according to the Piet Book :, at Prone 41, of the Public Records of Ir,iomi—Dods County, ?loridc also being the North right—of—way line of West Flogler Street as shown on said Niuniclpol City cf Miami Atlas Sheet Number 35E end Right—of—way mop of West nosier Bridge recorded in Plat Book E3, Page 44 c' the Public records of Miomi—Dude County, Rlaridc; thence NE7'45'57 E, clone. the aforesaid Scsterly projection, a distance of 35.Oe feet to Ir,:ersect with the Easterly right—of—way line of N,W. South River Drive _ccordina to said Plot Book ; at Pone 41; thence NE7'47'i4"5clone. the North right—of—wcy line of West Flog4er Street, a distance of 41.55 feet to the Paint of Beginning; thence continue N57'47.14'E, piping said North right—of—way line, o dietonat of 112.18 feet to c point on the bulkhead of the Miami River, the following three courses run along_ said bulkhead line; thence S15'49'15"7, c distance of 14.75 feet: thence NES*05'42"E, c disance cf 1E13 feet; thence S0218'19 c distance of 55.1E feet to intersect wIth the South right—of—wcy line of West Flooier Street as shown on the aforesaid Municipal City of Miami Atlas Sheet Number 35E also being on the aforesaid Plot Book 83, Pee 44; ;hence S87.47'i4"W, along sold South right—of—wcy fine, o distance of e4.80 feet to intersect with ❑ circular curve • concave to the Zest, hcvino o rcdics of 15:00 feet, which radial point bears S7:'.;5'05 thence Southerly, alone soil circular curve, on arc distance of 10.c1 feet through o central angle of 41'4i'0to a point of cusp on the Easterly right—of—wcy line of S.W. South River Drive cs per cforesoid Pict :cot ° Pose 41; thence N30'i5'14"W, alon_ said _c.,rerly right—of—wcy line Cis -tenet pf 1=.00 feet too point of curvature of o circular curve concave ta the Southwest, having c radius 525.OD 'get; 'thence Northwesterly. along gold circular curve on ore distonce of 53.17 feet through a cenircl angle of 9"0435" to the Foirt of 8eginning Containing 7,436 Square Feet or 0_17 acres; more or lees, by ceicuietlon, 26 EXHIBIT C INSURANCE REQUIREMENTS FOR REVOCABLE LICENSE AGREEMENT FOR 1 S.W. SOUTH RIVER DRIVE, MIAMI, FL. I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury Endorsements Required City of Miami included as an Additional Insured Contingent and Contractual Liability Primary Insurance Clause Premises and Operations Liability II. Business Automobile Liability $1,000,000 $2,000,000 $1,000,000 $1,000,000 A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit , Including Owned, Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 Endorsements Required City of Miami included as an Additional Insured III. Worker's Compensation A. Limits of Liability Statutory-State.of Florida Waiver of subrogation . IV. .Employer's' Liability A. Limits of Liability _..,.....,_..___.__.._._,__. _..._._ $500;000 for bodily injury caused by an accident, each accident. .$500,000 for bodily injury caused by disease, each employee 27 $500,000 for bodily injury caused by disease, policy limit V. Umbrella Liability (Excess Follow Form) A. Limits of Liability Each Occurrence Limit S1,000,000 Aggregate Limit $1,000,000 City of Miami listed as an additional insured The above policies shall provide City of Miami with written notice of cancellation or material change from the insurer in accordance to policy provisions. 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. 28 EXHIBIT "D" LIST OF EQUIPMENT/MATERIALS TO BE STORED ON PROPERTY Equipment Pressure Washer Epoxy Injector Air compressors Eyewash station (trailer mounted) Construction Forklifts Portable light plants Diesel Generators Dust Collectors Blasting Equipment Dumpsters and/or drums for construction and blast waste material Portable toilets Handwash station Diesel tank Miscellaneous equipment used in the industrial painting and marine fender industries Materials Fiberglass structurally reinforced composite piles (13" OD x 47' length) Structural steel for bridge repairs Blast media Epoxy materials per FDOT §926 Structural steel coatings per FDOT § 561 Miscellaneous material used in the industrial painting and marine fender industries 29 EXHIBIT "E" CONDITIONS OF USE FOR OCCUPANCY 1 Under no circumstance shall the Licensee place any soil, dredged materials or any other materials that may cause environmental contamination of the Property. 2. If contamination is found to be left on the Property, Licensee shall at its sole cost and expense pay to clean up its contamination. 3. Licensee shall cause a structural inspection of the riprap to be conducted by an independent structural engineer before and after the period of its use to determine if Licensee and/or its subcontractors have damaged the riprap. 4. Licensee shall remove all pipes, fencing, equipment and soil additions and restore Property to the same or better condition than the Property was in before its use, except that the invasive trees do not have to be replaced. 5. Licensee agrees to restore and repair the riprap to its previous or better condition after the expiration of its use. 6. Licensee's use of the submerged lands for barge unloading and loading activities will • require approval to permit the use of the state-owned submerged lands and environmental clearance from the Department of Enviromnental Protection ("DEP") and other state or local agencies and mitigation. Licensee agrees to pay any environmental mitigation costs and any fees arising from the Licensee's or Licensee's subcontractors' use of the state-owned submerged lands. 30