HomeMy WebLinkAboutExhibit 1REVOCABLE LICENSE AGREEMENT
ISSUED BY THE
CITY OF MIAMI
TO
CHLN, INC.
FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT
51 CHARTHOUSE DRIVE
MIAMI, FLORIDA 33133
1. Recitals.
TABLE OF CONTENTS
2. Definitions. 2
3. Purpose. 3
4. Interest Conferred by this Agreement. 3
5. Common Area. 4
6. Permitted Use 4
7. Occupancy and Tenn 4
8. Continuous Duty to Operate.
9. Use Fee. 5
10. Late Fee. 6
11. Returned Check Fee. 7
12. Guaranty Deposit. 7
13. Reporting Requirements. 8
14. Services and Utilities. 9
15. Condition of the Property and Maintenance. 10
16. Alterations, Additions or Replacements 11
17. Violations, Liens and Security Interests 11
18. City Access to Property. 12
19. Indemnification and Hold Harmless. 13
20. Insurance. 14
21. No Liability. 14
22. Safety 15
23. Taxes and Fees. 15
24. Cancellation by Request of Either of the Parties Without Cause. 16
25. Termination by City Manager for Cause 16
26. Notices. 16
27. Advertising. 17
28. Hazardous Materials 18
29. Radon Gas 19
30. Licenses, Authorizations and Permits. 19
31. Compliance with All Applicable Laws. 19
32. Ownership of Improvements. 20
33. Surrender of Property. 20
34. Termination of Prior Agreements. 21
35. Severability. 21
36. Invalidity 22
37. No Assignment or Transfer. 22
38, Public Records. 22
39. Conflict of Interest. 22
40. Americans with Disabilities Act. 23
41. Nondiscrimination. • 23
42. Amendments and Modifications. 23
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43. Litigation; Venue. 23
44. Waiver of .fury Trial. 24
45. 'Waiver. 24
46. Time of Essence. 24
47. No Interpretation Against Draftsmen. 74
48. Further Acts. 25
49. Third Party Beneficiary. 25
50. No Partnership. 25
51. Headings. 25
52. Authority. 25
53.. Entire Agreement. 26
EXHIBIT A - DESCRIPTION OF THE PROPERTY 28
EXHIBIT B - L SURANCE 29
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REVOCABLE LICENSE AGREEMENT
This Revocable License Agreement ("Agreement") is made this day of
2012 between the City of Miami ("City") a municipal corporation of the State of
Florida and CHLN, Inc. a Delaware corporation incorporated under the laws of the State of
Delaware ("Licensee").
WHEREAS, in 1973 the Commission of the City of Miami ("Commission") passed and
adopted Resolution 73-136 awarding the bid for the lease of a waterfront marine facility to
Grove Key Marina, Inc.; and
WHEREAS, the Commission adopted Resolution 76-307 authorizing and directing the
City Manager to execute a lease agreement ("Lease") with Grove Key Marina, Inc.; and
WHEREAS, the Lease was entered into on April 1, 1976; and
WHEREAS, the Lease provided that Grove Key Marina, Inc. and the City negotiate for
the construction and operation of a restaurant facility on the leased premises, with the terms and
conditions relating to the restaurant to be determined by mutual agreement between the City and
Grove Key Marina, Inc. subject to approval by the City Commission; and
WHEREAS, on October 14, 1976 the Commission passed Motion 76-885, approving in
concept the size and type of restaurant to be built on the property; and
WHEREAS, on January 31, 1977 an Addendum to the Lease was executed to add certain
terms and conditions, including but not limited to, establishing the rent structure from the
restaurant facility and the extension of the Lease term through June 30, 2009; and
WHEREAS, on July 7, 1982 the force majeure provision in the Lease was acknowledged,
establishing the termination date for the Lease and sublease for the restaurant facility; and
WHEREAS, the Lease, as amended, will terminate on June 22, 2012; and
WHEREAS, the City has begun a competitive solicitation process for the use and
occupancy of the Leased premises; and
WHEREAS, the City and Landry's Seafood House — Florida, Inc. (hereinafter referred to
as the "Licensee") desire to enter into a Revocable License Agreement ("Agreement") to
continue uninterrupted service to the patrons of the waterfront restaurant and uninterrupted
revenue to the City; 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
Sections 18-100 to 18-102 of the Code of the City of Miami, Florida, as amended ("Code"); and
WHEREAS, this Agreement permits only certain, enumerated, specific, listed permitted
uses, and does not permit anything further.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the
parties hereby agree as follows:
1. Recitals.
1.1 The foregoing recitals are hereby incorporated and made a part of this Agreement.
2. Definitions.
2.1 "City Manager" is the City Manager for the City of Miami.
2.2 "Director" shall mean the Director of the Public Facilities Department for the City
of Miami.
2.3 `Effective Date" shall mean June 23, 2012.
2.4 "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
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Occupational Health and Safety Act; the Toxic Substances Control Act; the
Pollutant Discharge Prevention and Control Act; the Water Resources Restoration
and Preservation Act; the Florida Air and Water Pollution Control Act; the
Florida Safe Drinking Water Act; and the Florida Environmental Reorganization
Act of 1975.
2.5 "Parties" shall mean the City and the Licensee.
2.6 "Permitted Use" shall mean the use of the subject City -owned property primarily
and principally as the principal headquarters for the Licensee's management of an
indoor/outdoor waterfront restaurant, and for no other purposes without the prior
written consent of the City Manager.
2.7 "Property" shall mean the City -owned real property and improvements containing
1.86 +/- acres of upland property located at 51 Charthouse Drive, Miami, Florida
and 0.47 +/- acres of submerged land abutting the property located at 51
Charthouse Drive, Miami, Florida, as more particularly described in Exhibit "A"
attached hereto and made a part hereof
3. Purpose.
The City is the owner of the Property. The City has expressed its desire to continue to
allow the Licensee to occupy and use the Property for the Permitted Use, under the conditions
hereinafter set forth. The use of the Property is strictly limited to the Permitted Use and is not to
be used for any other purpose whatsoever. Any use of the Property not authorized under
Permitted Use 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.
4. 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. The rights of Licensee hereunder are not
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those of a tenant, but are a mere personal privilege to do certain acts of a temporary character on
the Property and to use the Property, subject to the terms of this Agreement. The City retains
dominion, possession and control of the,Property. Therefore, no lease interest in the Property is
conferred upon Licensee under the provisions hereof. Licensee does not and shall not claim at
any time any interest or estate of any kind or extent whatsoever in the Property by virtue of this
Agreement or its use of the Property hereunder. Additionally, Licensee does not and shall not
claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue
of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions,
or alterations to the Property which may be authorized by the City.
5. Common Area.
Licensee shall have the nonexclusive right to use the common areas of the Property
during the term of this Agreement for the purposes intended, subject to such rules and
regulations as City may establish from time to time.
6. Permitted Use
Subject to existing zoning and other governmental restrictions and the execution of this
Agreement, this Agreement authorizes the Licensee to occupy and use the Property for the
operation of the waterfront restaurant, and for no other purpose whatsoever ("Permitted Use").
Licensee acknowledges that the State of Florida Board of Trustees of Internal
Improvement Trust Fund ("State") owns a portion of the submerged land on the Property and
that certain submerged lands are subject to certain restrictions. In the event the State charges the
City a State fee for said use, Licensee shall pay all fees imposed, including any fees on a
retroactive basis prior to the Effective Date. In the event that the Licensee does not pay the
retroactive fees within fifteen (15) days from notification, then the City may terminate this
agreement with fifteen (15) days prior written notice.
7. Occupancy and Term.
This Agreement is revocable -at -will. Unless this Agreement is revoked or terminated as
provided in this Agreement, this Agreement shall commence upon the Effective Date and shall
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continue on a month -to -month basis, provided Licensee is not in violation of the Agreement,
until the earlier to occur of (i) termination or cancellation of this Agreement by either party upon
not less than thirty (30) days written notice prior to the end of any monthly period, or (ii) the 31 st
day of December 2012.
S. 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 operationsin the Property in accordance with the terms
of this Agreement.
9. Use Fee.
9.1. Minimum Monthly Use Fee.
Commencing on the Effective Date of this Agreement, and in advance of the first day of
each month thereafter during the term of the Agreement, Licensee shall pay to the City .the
greater of a minimum monthly Use Fee of Three Thousand Dollars ($3,000.00), plus State of
Florida State Use Tax, if applicable, or a percentage fee ("Percentage Fee"), plus State of Florida
Use Tax, if applicable, for the Licensee to use the Property.
The first such payment due under this Paragraph shall be prorated to include any period
from the Effective Date to the first day of the first full calendar month to occur thereafter.
Licensee shall be responsible for any cost associated with its programs operated on the
Property, including but not limited to, security, equipment, and insurance.
9.2. Percentage Fee.
Commencing on the Effective Date of this Agreement, an amount equal to three and one-
half percent (3.5%) of monthly gross sales ("Use Fee"), as defined herein, shall be paid monthly
to the City on or before the fifteenth day of the following month, plus State of Florida State Use
Tax, if applicable, for the Licensee to use the Property.
Licensee shall be responsible for any cost associated with its programs operated on the
Property, including but not limited to, security, equipment, and insurance.
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9.3. Gross Sales
The term gross sales ("Gross Sales") as used herein shall include all receipts, whether
collected or accrued, derived by the Licensee from all business conducted upon or from the
Property, including but not limited to receipts from sale of food, beverages, alcoholic beverages,
merchandise, or from any source whatsoever; excluding the following items:
(a) Retail sales taxes, excise taxes, or related direct taxes on the consumer and
collected by Licensee;
(b)
Receipts from the sale of waste or scrap materials resulting from Licensee's
operations on the Property;
(c) Receipts from the sale or trade-in value of any furniture, fixture, or equipment on
the Property;
(d) The cost or value meals or discounts given to the Licensee;
(e) The cost or value of food and beverage used for entertainment and business
promotion purposes by officers and employees of Licensee; but in no instance shall this
provision be construed to include bad debts;
The amount of any gratuities given by patrons to employees of the Licensee;
Receipts from sale of tobacco, cigarettes and cigars; and
Revenue from restaurant parking.
Manner of Payment.
The monthly Use Fee shall be due on the 5th day of each month without notice or
demand. Payments shall be made payable to "City of Miami, Florida" and shall be delivered to
the City at the following address:
City of Miami
Finance Department
Attn: Treasury Management/ Receipts
444 S.W. 2nd Avenue, 6`'' Floor
Miami, Florida 33130
10. Late Fee.
In the event any installment of the monthly Use Fee is not received by City on or before
the fifth day of the month, Licensee shall pay to City a late charge in an amount equal to three
percent (3%) of the respective Use Fee or Two Hundred Dollars ($200.00) per day, whichever is
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greater. Such late fee shall constitute additional fees due and payable to City by Licensee upon
the date of payment of the delinquent payment referenced above. Acceptance of such late charge
by City shall, 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.
11. 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 ("Returned Check Fee") based on the following schedule;
Returned Amount Returned Check Fee
S00.01 - 50.00 $20.00
$50.01 - 300.00 $30.00
S300.01 - 800.00 $40.00
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.
12. Guaranty Deposit.
Simultaneously with the execution of this Agreement, the Licensee shall deposit with
City a Guaranty Deposit in the amount of Nine Thousand Dollars ($9,000.00) as guarantee for
the full and faithful performance by Licensee of all obligations of Licensee under this Agreement
or in connection with this Agreement.
If the Licensee is in violation beyond any applicable notice or cure period, the City may
use, apply or retain all or any part of the Guaranty Deposit for the payment of (i) any fee or other
sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by
City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum
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which City may expend or be required to expend as a result of Licensee's violation. Should the
City use, apply or retain all or any part of the Guaranty Deposit, Licensee shall reimburse the
amount used, applied or retained within fifteen (15) days of the City's application of the
Guaranty Deposit. The use, application or retention of the Guaranty 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 Guaranty 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 Guaranty Deposit
(or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect
to the Guaranty Deposit. Licensee shall not be entitled to receive any interest on the Guaranty
Deposit.
23. Reporting Requirements.
13.1 Monthly Gross Sales
Notwithstanding anything to •the contrary which may be contained herein, Licensee shall
calculate an approximate amount based on monthly Gross Sales and shall pay the City, on the
fifteenth date of the month following the previous month, for the percentages of Gross Sales as
defined in Paragraph 9.3 herein.
13.2. Financials.
Within one hundred twenty (120) days after the end of its fiscal year, Licensee shall
deliver or cause to be delivered to the Director an audited financial statement which includes,
among other things, information on the Licensee's business operations for the fiscal year.
Such audited financial statement shall be prepared by an independent certified .,public
accountant ("CPA") employed at the Licensee's sole cost and expense. In the event Licensee is
unable to timely submit the audited financial statement and provided Licensee has commenced
and diligently pursued the completion of the audited financial statement, Licensee may request
from the Director a thirty (30) day extension to complete the audited financial statement, which
request shall not be unreasonably denied. Said CPA shall attest that such statement is prepared
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in accordance with generally accepted accounting principles and practices and represents the
results of operations for the period indicated therein.
Notwithstanding the above and during the Term of this Agreement; and for a period
expiring three (3) years after the expiration of the term, at its option the City may, at its sole cost
and expense, audit Licensee's business affairs, rcords, program files, sales slips and sales tax
records in connection with Licensee's sales on, from or related to the Property for the period
covered by any financial statement, report or record furnished to the City.
Licensee shall allow the City or auditors of the City to inspect all or any part of the
source documents and records for the aforesaid reports. Said inspection shall be conducted at the
sole discretion of the City. Records shall be available Monday through Friday, inclusive,
between the hours of 8:00 AM and 5:00 PM at the Licensee's address provided in Paragraph 26
of this Agreement. Copies requested by the City shall be furnished to the City at no cost. This
Agreement is subject to the audit and inspection rights set forth in Sections 18-100 to 18-102 of
the Code.
14. Services and Utilities.
14.1 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, stormwater fees,. gas, telephone, television, cable,
telecommunications, internet, garbage and sewage disposal used by Licensee during its
occupancy of the Property, as well as all costs for installation of any lines and necessary
equipment. 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.
Licensee, at its, sole cost and expense, shall provide cleaning and janitorial services and
hire pest and termite 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
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day. Licensee shall be responsible to take prudent preventive -maintenance measures to safeguard
the Property from storms and other "Acts of God" as that term is defined by Florida law.
14.2 City's Responsibility
City, at its sole cost, shall pay for the following utilities: None.
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.
15. Condition of the Property and Maintenance.
Licensee accepts the Property "as is", in its present condition and state of repair and
without any representation or affirmation by or on behalf of City, and agrees that City shall,
under no circumstances, be liable for any latent, patent or other defects in the 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.
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 requirements for Licensee's
occupancy thereof.
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16. 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 Manageror 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.
17. Violations, Liens and Security Interests.
The Licensee shall not suffer or permit any tax, statutory, laborers, material person, or
construction liens to be filed against the title to the Property, nor against any alteration by any
reason, including but not limited to, by reason of work, labor, services, tax liabilities 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
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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, tax or other 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 or other 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 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 person or construction
lien so long as (i) the Licensee shall ingood 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 or other
security reasonably satisfactory to the City in an amount sufficient to pay one hundred ten
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.
18. City Access to Property.
City and its authorized representative(s) shall have at all times access to the Property.
City will maintain a complete set of keys to the Property. Licensee, at its sole cost and expense,
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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, excluding the vault, 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 terms 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.
19. Indemnification and Hold Harmless.
Licensee shall indemnify, defend and hold hazuiless the City and its officials, employees
and agents (collectively referred to as "Indemnitees") and each of them from and against all loss,
costs, penalties, fines, damages, claims, expenses (including attorney's. fees) or liabilities
(collectively referred to as "Liabilities") by reason of any injury to or death of any person or
damage to or destruction or loss of any property arising out of, resulting from, or in.connection
with (i) the performance or non-performance of the services contemplated by this Agreement
which is or is alleged to be directly or indirectly caused, in whole or in part, by any act,
omission, default or negligence (whether active or passive) of Licensee or its employees, agents
or subcontractors (collectively referred to as "Licensee"), regardless of whether it is, or is alleged
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to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission or
default or negligence (whether active or passive) of the Indemnitees, or any of them or unless
such injuries or damages are ultimately proven to be the result of grossly negligent or willful acts
or omissions on the part of the City, its officials and/or employee; or (ii) the failure of the
Licensee to comply with any of the paragraphs herein or the failure of the Licensee to conform to
statutes, ordinances, codes, rules, or other regulations or requirements of any governmental
authority, federal or state, in connection with the performance of this Agreement. Licensee
expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and
against all liabilities which may be asserted by an employee or former employee of Licensee, or
any of its subcontractors, as provided above, for which the Licensee's liability to such employee
or former employee would otherwise be limited to payments under state Workers' Compensation
or similar laws.
Licensee further voluntarily and knowingly acknowledges that, as lawful consideration
for being granted theright 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. The Licensee affirms that the granting of this Agreement is
good, sufficient and independent consideration granted by the City for this Indemnification and
Hold Harmless, which shall survive the cancellation or expiration of the Agreement.
20. 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 forth in Exhibit "B" attached hereto
and made a part hereof
21. 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,
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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.
22. Safety.
Licensee will allow City inspectors, agents or representatives the ability to monitor its
compliance with safety precautions as required by federal, state or local laws, rules, regulations
and ordinances. By performing these inspections the City, its agents, or representatives are not
assuming any liability by virtue of these laws, rules, regulations and ordinances. Licensee shall
have no recourse against the City, its agents, or representatives from the occurrence, non-
occurrence or result of such inspection(s). Upon issuance of a notice to proceed, the Licensee
shall contact the Risk Management Department at (305) 416-1700 to schedule the inspection(s).
23. 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,
if any, and parking surcharges.
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In the event Licensee appeals an Assessment, Licensee shall immediately notify the City
Manager of its intentionto 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.
24. Cancellation by Request of Either of the Parties Without Cause.
Either party may cancel this Agreement at any time, without cause, by giving not less
than thirty (30) days written notice prior to the end of any monthly period to the non -cancelling
party prior to the effective date of the cancellation.
This is a cancellation for convenience clause and neither party shall have any recourse
against the other party due to the exercise of such cancellation provided; however, that Licensee
must pay its fees due to the City under this Agreement through the effective date of such
cancellation.
25. Termination by City Manager for Cause.
If, at the sole and complete discretion of the City Manager, Licensee in any manner
violates the restrictions, terms and conditions of this Agreement, then, and in the event, after
thirty (30) 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 thirty (30) day period, this Agreement shall be automatically terminated
without the need for further action by the City. Upon such automatic termination, Licensee shall
abide by the terms of Paragraph 33 herein.
26. 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
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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, 10`h Floor
Miami, FL 33130
WITH COPIES TO
Director
City of Miami
Department of Public Facilities
444 SW 2 Avenue, Suite 325
Miami, FL 33130
City Attorney
City of Miami
444 SW 2nd Avenue, Suite 945
Miami, FL 33130
27. Advertising.
LICENSEE
CHLN, Inc.
Attn: Larry Fontana
1510 West Loop South
Houston, TX 77027
Licensee shall not permit any signs or advertising matter 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/her designee, which approval may be withheld for any or no reason, at his/her sole discretion.
Licensee shall, at its sole cost and expense, install, provide, maintain such sign, decoration,
advertising matter or other things as may be permitted hereunder in good condition and repair at
all times. Licensee must further obtain approvals, permits, or other required approvals by
whatever name called from all governmental authorities having jurisdiction, and must comply
with all applicable requirements set forth in the Miami -Dade County Code, the City of Miami
Code and Zoning Ordinance. Upon the cancellation of this Agreement, Licensee shall, at its sole
cost and expense, remove any sign, decoration, advertising matter or other thing permitted
hereunder from the Property. If any part of the Property is in any way damaged by the removal
of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should
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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 or
place upon the Property an appropriate sign, plaque or historic marker indicating City's having
issued this Agreement.
28. Hazardous Materials.
The Licensee shall, at its sole cost and expense, at all times and in all respects comply
with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies,
orders and administrative actions and orders relating to hazardous materials ("Hazardous
Materials Laws"), including, without limitation, any Hazardous Materials Laws relating to
industrial hygiene, environmental protection or the use, storage, disposal or transportation of any
flammable explosives, toxic substances or other hazardous, contaminated or polluting materials,
substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous
Wastes", "Hazardous Materials" or "Toxic Substances" (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 conformity 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.
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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.
29. Radon Gas.
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from your county
public health unit. Licensee may, have an appropriately licensed person test the Property for
radon. If the radon level exceeds acceptable EPA standards, the City may choose to reduce the
radon level to an acceptable EPA level, failing which either party may cancel this License.
30. 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 local, state and federal 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.
31. 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.
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32. Ownership of Improvements.
As of the Effective Date and throughout the use period, all .buildings and improvements
shall be vested with the City. Furthermore, title to all Alterations made in or to the Property,
whether or not by or at the expense of Licensee, shall,unless otherwise provided by written
agreement, immediately upon their completion become the property of the City and shall remain
and be surrendered with the Property.
33. Surrender of Property.
In either event of termination or cancellation of this Agreement, 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. All trade fixtures, machinery, equipment, furniture or other personal property
of whatever kind and nature kept or installed on the Property by the Licensee may be removed
by the Licensee, at any time during the term of this Agreement, unless said items are
pen iianently affixed to the Property. Upon surrender, Licensee shall promptly remove all trade
fixtures, machinery, equipment, furniture or other personal property not permanently affixed to
the Property and agrees that it will repair any damage to the Property occasioned by the removal
of said trade fixtures, machinery, equipment, furniture or other personal property in a good and
workmanlike manner.
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 trade fixtures, machinery, equipment, furniture
or other personal property of whatever kind and nature 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.
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34. Termination of Prior Agreements.
Licensee acknowledges the termination of the Lease Agreement made and entered on
April 1, 1976, as amended, between the City and Grove Key Marina, Inc. and any and all other
similar agreements with the City of Miami, Florida granting to Licensee any 'right of possession
or occupancy of the Property. Licensee, for itself and its successors and assigns, hereby waives
any notice of termination of such agreements that it would otherwise have been entitled to,
whether in law or in equity. The provisions of this Section shall survive the termination of this
Agreement.
35. Severability.
It is the express intent of the parties that this Agreement constitutes a license and riot 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 Iight 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 whichdo 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.
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36. 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.
37. 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.
38. 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.
39. Conflict of Interest.
Licensee is aware of the conflict of interest laws of the City of Miami (Miami City Code
Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of
the State of Florida as set forth in the Florida Statutes, as amended, and agrees that it will fully
comply in all respects with the terms of said laws and any future amendments thereto. Licensee
covenants that no person or entity under its employ, presently exercising any functions or
responsibilities in connection with this Agreement, has any personal financial interests, direct or
indirect, with the City. Licensee further covenants that, in the performance of this Agreement,
no person or entity having such •conflicting interest shall be utilized in respect to services
provided hereunder. Any such conflict of interest.(s) on the part of Licensee, its employees or
associated persons, or entities must be disclosed in writing to the City.
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40. Americans with Disabilities 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.
41. 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
race, ancestry, national origin, color, sex, religion, age, disability, familial status, marital status
or sexual orientation. Licensee and/or its authorized agents will insure that its employees are
fairly treated during employment without regard to their race, national origin, ancestry, color,
sex, religion, age, disability, familial status, marital status or sexual orientation. 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.
42. Amendments and Modifications.
No amendments or modifications to this Agreement shall be binding on either party
unless approved by the City Commission, approved as to legal form and correctness by the City
Attorney, provided in writing, and signed by both parties.
43. Litigation; Venue.
Any dispute or civil action herein shall be resolved in the courts of Miami -Dade County,
Florida. The parties shall attempt to mediate any dispute without litigation. If the parties agree
to mediate 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
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not intended to establish mediation as a condition precedent before pursuing specific
performance, equitable or injunctive relief
44. Waiver of .fury 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.
45. Waiver.
Any waiver by either party or any breach by either party of any one or more of the
covenants, conditions or provisions of this Agreement shall not be construed to be a waiver of
any subsequent or other breach of the same or any covenant, condition or provision of this
Agreement, nor shall any failure on the part of the City to require or exact full and complete
compliance by Licensee with any of the covenants, conditions or provisions of this Agreement
be construed as in any manner changing the terms hereof to prevent the City from enforcing in
full the provisions hereto, nor shall the terms of this Agreement be changed or altered in any
manner whatsoever other than by written agreement of the City and Licensee.
46. 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.
47. 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. This Agreement
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is the result of negotiations between the parties and has been typed/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.
48. 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.
49. 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.
50. No Partnership.
Nothing contained herein shall make, or be construed to make any party a principal,
agent, partner or joint venturer of the other.
51. Headings.
Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
52. Authority.
Each of the parties hereto acknowledges it is du y authorized to enter into this Agreement
and that the signatories below are duly authorized to execute this Agreement in their respective
behalf.
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53. Entire Agreement.
This instrument and its attachments constitute the sole and only agreement of the parties
hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date.
Any prior agreements, promises, negotiations or representations not expressly set forth in this
Agreement are of no force or effect.
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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,CMC Johnny Martinez, P.E.
City Clerk City Manager
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND LEGAL
REQUIREMENTS: CORRECTNESS:
By: By:
Calvin Ellis, Director.
Department of Risk Management
WITNESS:
Julie .O. Bru
City Attorney
CFILN, ENC.
By: By:
Signature Signature
Print Name Print Name
By: Date
Signature
Print Name
27
EXHIBIT A
DESCRIPTION OF THE PROPERTY
(To be inserted prior to execution of the Agreement by the Parties.)
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EXHIBIT B
INSURANCE
(Additional insurance may be required by the Risk Management Department. If so, this exhibit will be
modified prior to execution of the Agreement by the Parties.)
Licensee, at its sole cost, shall obtain and maintain in full force and effect at all times
throughout the period of this Agreement, the following insurance coverage:
A. Commercial General liability affording coverage for bodily injury, including
death, and property damage, including coverage for premises and operations
liability, products and completed operations, personal and advertising injury,
contingent and contractual exposures with limits of at least $1,000,000 per
occurrence, $2,000,000 policy aggregate protecting and affording coverage
against all claims, demands or actions in connection arising out of the use of the
property. The City shall appear listed as an additional insured on this coverage.
B. "All Risk" special form coverage, including theft, windstoinu and flood coverage,
and insuring 100% replacement cost on the building and Licensee's
improvements, including all its equipment, fixtures, furniture and all other
personal property in and about the property. Business Income and Extra Expense
should be included preferably issued on an Actual Loss Sustained Basis.
C. Automobile Liability affording coverage on all owned autos, including hired and
non owned auto exposures with limits of at least $1,000,000 and listing the City
of Miami as an additional insured with respectto this coverage.
D. Workers' Compensation affording statutory limits for the State of Florida.
E. The City's Department of Risk Management, reserves the right to reasonably
amend the insurance requirements by the issuance of a notice in writing to
•Licensee. The Licensee shall provide any other insurance or security reasonably
required by the City.
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D. The policy or policies of insurance required shall .provide for notice of
cancellation or material changes in accordance to policy provisions. Said notice
should be delivered to the City of Miami, Department of Risk Management, 444
SW 2 Avenue, 9th Floor, Miami, Florida 33130, with copy to City of Miami,
Department of Public Facilities, 444 SW 2 Avenue, 3Td Floor, Miami, Florida
33130, or such other address that may be designated from time to time.
E. A current evidence and policy of insurance evidencing the aforesaid required
insurance coverage shall be supplied to Department of Public Facilities of the City
at the commencement of this Agreement and a new evidence and policy shall be
supplied at least twenty (20) days prior to the expiration of each such policy.
Insurance policies required above shall be issued by companies authorized to do
business under the laws of the State, with the following qualifications as to
management and financial strength: the company or companies should be rated
"A-" as to management, and no less than class "V" as to financial strength, in
accordance with the latest edition of Best's Kev Rating Guide, or the company or
companies holds a valid Florida Certificate of Authority issued by the State of
Florida, Department of Insurance, and is a member of the Florida Guarantee
Fund. Receipt of any documentation of insurance by the City or by any of its
representatives, which indicates less coverage than required, does not constitute a
waiver of Licensee's obligation to fulfill the insurance requirements herein.
In the event Licensee shall fail to procure and place such insurance, the
City may, but shall not be obligated to, procure and place same, in which event
the amount of the premium paid shall be paid by Licensee to the City as an
additional fee upon demand and shall in each instance be collectible on the first
day of the month or any subsequent month following the date of payment by the
City. Licensee's failure to procure insurance shall in no. way release Licensee
from its obligations and responsibilities as provided herein.
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