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HomeMy WebLinkAboutExhibit 1 07/12/12REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO ALLAPATTAH COMMUNITY ACTION, INC. DAY CARE CENTER FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT 1836 NW 22 PLACE 1vIIAMI, *FLORIDA TABLE OF CONTENTS 1. Recitals 2. Definitions 4 3. Purpose 4. Interest Conferred by this Agreement 5 5. Manner of Propeity Use 6 6. Occupancy and Term. 6 7. Continuous Duty to Operate. 6 8. Use Fee. 7 9. Late Fees. 7 10. Returned Check Fee 11. Guaranty Deposit 8 12. Services and Utilities. 9 13. Reporting Requirements. 10 14. Condition of the Property and Maintenance. 13 15. Alterations, Additions or Replacements. 13 16. Violations, Liens and Security Interests. 14 1.7. City Access to Property. 15 18. Indemnification and Hold Hai luless 16 19. Insurance 17 20. No Liability. 17 21. Safety. 18 22. Taxes and Fees. 18 23. Revocation by Request of Either of the Parties Without Cause 18 24. Revocation by City Manager for Cause 19 25. Notices 19 26. Advertising. 20 27. Hazardous Materials. 20 28. Radon Gas. 21 29. Licenses, Authorizations and Permits 22 30. Compliance with all Applicable Laws22 31. Ownership of Improvements. 22 32. Surrender of Property. 22 33. Severability. 23 34. Invalidity. 24 35. No Assignment or Transfer 24 36. Public Records 24 37. Conflict of interest 74 38. Americans with Disabilities Act 25 39. Nondiscrimination. 25 40. Amendments and Modifications. 25 41. Attorney(s') Fees. 25 42. Litigation; Venue 26 43. Waiver ofiury Trial. 26 44. Waiver 26 45. Time ofEssence. 27 46. No Interpretation Against Draftsmen. 27 47. Further Act 27 48. Third Party Beneficiary. 27 49. No Partnership 27 50, Headings. 27 51. Authority. 28 52. Entire Agreement 28 53. Special Provisions. 28 EXHIBIT A 30 PROPERTY 30 EXHIBIT B 31 REPORTING REQUIREMENTS 31 EXHIBIT C 32 INSURANCE REQUIREMENTS 32 2 REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is made this day of , 2012, by and between the City of Miami a municipal corporation of the State of Florida ("City") and Allapattah Community Action, Inc. ("Licensee"), a non-profit corporation incorporated under the laws of the State of Florida. RECITALS WHEREAS, the City and Licensee ("Parties") desire and intend to enter into a Revocable License Agreement for the use of City -owned property located at 1836 NW 22 Place, Miami, Florida ("Property"); and WHEREAS, Licensee's organizational purpose is to operate a low cost, day care service to qualifying area residents; and WHEREAS, Licensee has expressed its interest in continuing to utilize the Property for its uses; and WHEREAS, this Revocable License 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 permits only certain, enumerated, specific, listed permitted uses and does not permit anything further; and WHEREAS, this Agreement is subject to the audit and inspection rights set forth in Sections 18-100 and 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. WHEREAS, this Agreement confers no exclusive possession of the Property; and 3 WHEREAS, this Agreement does not convey or transfer any right to exclude the City from any real property; and WHEREAS, the City and Licensee desire and intend to enter into a Revocable License Agreement; and WHEREAS.. the Parties jointly and voluntarily stipulate as to the accuracy of these recitals; and NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties hereby agree as follows: Recital~. 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 August 13, 2012. 2.4 "Hazardous Material Laws" means all applicable requirements of federal, state and local environmental, public health and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of: the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of1.975. 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 a child day care facility, and for no other purposes without the prior written consent of the City Manager which :nay be withheld. 2.7 "Property" shall mean the City -owned real property and improvements containing approximately of 5,293 .adjusted square feet ofbuilding space on a 28,600 square foot lot located at 1836 NW 22 Pla.ce, ivliami, 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 deteunined that the Property is not needed at this time by any of the City's offices or departments. The City has expressed its desire to assist the Licensee in accomplishing its purpose and in furtherance thereof authorizes the Licensee to occupy and use the Property for the Pei:nitted 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 the 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. 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 those of a tenant, but are a mere personal privilege to do certain acts of a temporary character described herein 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 5 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. Manner of Property Use. Licensee's use of the Property is non-exclusive and License acknowledges and agrees to abide by the terms and obligations as set forth in the services to be provided, manner of operation, use areas and maintenance and utility obligations, provided however, the City agrees not to enter into another License Agreement or other similar Agreement on this Property that would interfere with Licensee's ability to operate on the Property. 6. Occupancy and Term. This Agreement is revocable -at -will, subject to the notice requirements below. Unless this Agreement is revoked or terminated as provided in this Agreement, this Agreement shall commence on the Effective Date and shall expire automatically one (1) year after the Effective Date ("Initial Term"). Provided Licensee is not in violation of the Agreement, Licensee is hereby granted the option to extend this Agreement for nine (9) additional one-year renewal option periods, upon expiration of the Initial Term under the same terms and conditions of the Initial Terra upon the mutual consent of both parties. Licensee shall request such renewals individually in writing no later than ninety (90) days prior to the expiration of the current term. The City Manager is hereby authorized to exercise such renewals, which may beat his/her sole discretion and may be subject to additional consideration. 7. Continuous Duty to Operate. Except where the Property is rendered unusable by reason of are 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 terms of this Agreement. 6 S. Use Fee. 8.1 Monthly Use Fee. In consideration of this Agreement, Licensee shall pay to City the following Monthly Use Fee as set forth in Subparagraph B below: 8.2 Manner of Payment. Commencing on the Effective Date of this Agreement, and on the first day of each month thereafter, during the term of the Agreement, Licensee shall pay to the City a monthly Use Fee in the amount of Fifty dollars ($50.00), plus State of Florida Use Tax (if applicable) for the Licensee to use the Property, to the following address: City of Miami Department of Finance Attention: Treasury Management/Receipts 444 SW 2''° Avenue, 6th Floor Miami, Florida 33130 9. Late Fees. In the event any Use Fee payment is not received by the 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%) or Two Hundred Dollars ($200.00) per day, whichever is 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. 1.0. 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 $ 00.01 - $ 50.00 $ 50.01 - $300.00 $300.01 - $800.00 Returned Check Fee S20.00 S30.00 $40.00 7 OVER S800.01 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. 11. Guaranty Deposit. The City acknowledges that the Licensee provided the City with deposits totaling Three Hundred Dollars ($300.00), hereinafter referred to as the Guaranty Deposit, as required under the Revocable License Agreement entered on August 13, 2002 and expiring on August 12, 2012. As such, no additional Guaranty Deposit will he required. 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 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, 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 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 beher 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. 8 Services and Utilities. 12.1 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, sto.iii water 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 equipment necessary. 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 tines 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 storms and other "Acts of God" as that term is defined by Florida law. 12.2 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 govermenental orders or directives. Licensee shall not claim any damages by reason of the City's or other individual's 9 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. 13. Reporting Requirements. Licensee shall prepare, or cause to be prepare(', the following reports and documents identified in Paragraph sub -sections A, B and C below and submit them to the Director of the Department of Public Facilities, Asset Management Division, City of Miami, 444 SW 2n` Avenue, 3`d Floor, Miami, FL 33130 by the timeframes identified below and detailed in Exhibit "B" attached hereto and incorporated herein by reference. 13.1 Financials. Within one hundred twenty (120) days after the end of its fiscal year, Licensee shall deliver or cause to be delivered to the City of Miami's Director, Department of Public Facilities, an audited financial statement which includes, among other things, information on the Licensee's business operations for the fiscal year, including the following: i) grants, subsidies, rebates, credits or similar benefits received from any federal, state, regional or local body, agency, authority, department or organization which revenues are unrestricted or are to be used for general operating expenses; ii) all donations and contributions received which revenues are unrestricted or are to be used for general operating expenses. iii) revenue from services, program fees, membership dues; iv) revenue from, advertising and sponsorships conducted on the Property; v) revenue from concession sales and all other receipts whatsoever of all business conducted in or from the Property; vi) all revenue from sales and services generated on or from the Property; vii) all revenue received by Licensee or any business entity or venture which has involvement of Licensee's principals, in cormeetion with the use of the Property, any facility thereon, or any portion thereof for any period of time, including without limitation, special events and fundraising events, held on the Property; 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 10 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 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 effective term of this Agreement described in Paragraph 6 herein 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, records, 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 monthly reports. Said inspection shall be conducted at the sole discretion of the City. Records shall be available Monday through Friday, inclusive, between the hours of 8:00 AM and 5:00 PM at the Licensee's address provided in Paragraph 25 of this Agreement. Copies requested by the City shall be furnished to the City at no cost. 13.2 IRS Fong. 990 Tax Returns. In the event Licensee cannot provide audited financial statements, as set forth in Paragraph 13 A herein, Licensee shall. provide City with a copy of its most recent IRS Foim 990 Tax Return no later than three months after the end of its fiscal year. 13.3 Preventive Maintenance Report. No later than August 31 of each year, Licensee, at its own cost and expense, shall cause a certified and qualified inspector to perform physical inspection of the Property, including all structural, mechanical and electrical components as part of a preventive maintenance program and shall submit an inspection report to the City of any deteriorating conditions found at the Property ("Preventive Maintenance Report"). Within sixty (60) days of completing said inspection, Licensee shall submit a rernediation plan to the City, to be approved by the City 11 Manager or his/her designee, for all conditions requiring repair, replacement or modification as noted in the inspection report. As part of the physical inspection of the Property, Licensee shall perfoiin or cause to be pertained, the following preventive maintenance services: i) '') vi) vii) viii) Cleaning and janitorial services for the city -owned Property; Cr_ounds services, including lawn, shrub and tree maintenance and any rubbish or obstructions from the city -owned property; Interior and exterior window cleaning to he performed as needed but no less than once every one hundred and twenty (120) days; Vermin control as necessary; but no less than once every sixty (60) days; Periodic maintenance and cleaning of kitchen and exhaust equipment, and grease traps or grease inceptors, if applicable; Painting of interior and exterior of buildings, including caulking of all window and door frames, painting of signs, if applicable and restriping of parking lot on the licensed Property, as necessary, but no less than every four (4) years; Pressure clean roof as necessary, or upon written request by the City Manager; Replace roof as necessary or upon written request by the City Manager; ernovai cf If Licensee refuses, neglects or fails to provide the above services or does not provide adequate services within thirty (30) days after written demand from the City, City may take corrective measures or cause the Property to be cleaned or repaired without waiving its right, based upon any violation of the Licensee and without releasing Licensee from any obligations hereunder. Licensee shall pay City as additional payments the full cost of such work within thirty (30) days of Licensee's receipt from the City of an invoice indicating the cost of such corrective measures or clean-up. Failure to pay such invoice as directed without the necessity of City repairing the Property shall constitute a violation of this Agreement. Nothing herein shall imply that maintenance, repair and inspections should be performed by Licensee only at the suggested intervals. Licensee shall, at all times, be responsible for the condition of the Property and shall perfoiiii repairs required in a timely manner so as to prevent injury to person and waste to property. 12 14. 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 its current condition, subject to reasonable wear and tear, ordinary wear and tear excepted, 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 interior and exterior non-structural 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 15. Alterations, Additions or Replacements. Except in the event of an emergency, Licensee shall not make any repair in excess of S 1,000.00 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, bui.iding 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. 13 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. 16. y%ioiations, Liens and Security )interests. The Licensee shall not suffer or permit any 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 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 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 person or construction lien so long as (i) the Licensee shall in good faith proceed to contest the 14 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. 17. 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, 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 perfouu any obligations of Licensee hereunder which Licensee has failed to perfoiui 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 15 upon City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 1a. Indemnification and Hold Harmless. Licensee shall indelnnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of resulting from, or in connection with (i) the perfotnuan.ce or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Licensee or its employees, agents or subcontractors (collectively referred to as "Licensee"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission 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 farther voluntarily and knowingly 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. The Licensee affirms that the granting of this Agreement is 16 good, sufficient and independent consideration granted by the City for this Indemnification and Hold Harmless, which shall survive the termination or expiration of the Agreement. 19. 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 The City is self insured. 20. 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 injury, death or property damage resulting from Licensee's use of the Property. 17 21. Safe 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). 22. 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), its proportionate share of use of the Property and/or against personal property of any kind, owned 'by or placed in, upon or about the Property by Licensee, including, but not limited to, ad valorem taxes, fire fees, if any, 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/her authorized designee, or other security reasonably satisfactory to the City Manager, or his/her authorized designee, in an amount sufficient to pay one hundred percent (100%) of the contested Assessment with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. 23. Revocation by Request of Either of the Parties Without Cause. Either party may revoke this Agreement at any time without cause by giving not less than thirty (30) days written notice to the non -revoking party prior to the effective date of the revo cation. This is a revocation for convenience clause and neither party shall have any recourse against the other party due to the exercise of such revocation provided;. however, that Licensee 18 must pay its fees due to the City under this Agreement through the effective date of such revo cation. 24. Revocation 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 ten (10) days written notice given to Licensee by the City Manager within which to cease such violation or correct such deficiencies, or begin to correct deficiencies that are by their nature not correctable within 10 days, and upon failure of Licensee to do so after such written notice within said ten (10) day period, this Agreement shall be automatically revoked without the need for further action by the City. Upon such automatic revocation, Licensee shall abide by the terms of Paragraphs 6 and 26 herein. 25. 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 tirne 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' I'IL4MI City of Miami Office of the City Manager 444 SW 2nd Avenue, 10th Floor Miami, Florida 33130 WITH CONES TO: City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 LICENSEE Executive Director Allapattah Community Action, Inc. Child Care Program 1836 I\1W 22 Place Miami, Florida 33125 19 Director City of Miami Department of Public Facilities 444 SW 2nd Avenue, Suite 325 Miami, Florida 33130 26. Advertising. 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, peiu!its, 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. Any signage existing as of the date of this Agreement is in compliance with the requirements in this section. Upon the revocation or expiration 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 or place upon the Property an appropriate sign, plaque or historic marker indicating City's having • issued this Agreement. 27. 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, 20 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 revocation or expiration ofthis Agreement; 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 governrnentai requirements. The requirements of this Paragraph shall survive the revocation or expiration of this Agreement. 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 hest of its knowledge there are no Hazardous Materials presently existing on the Property. 2g. 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 21 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. 29. Licenses, A.uthorizations and Permits. Licensee shall obtain, or cause to be obtained, and maintain in full force and effect throughout the teui 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. 30. Compliance with aGi 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. 31. Ownership of Improvements. As of the Effective Date and throughout the use period, all buildings and improvements on the PropeiLy 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. 32. Surrender of Property. In either event of termination or revocation of this Agreement, Licensee shall peacefully surrender the Property broom cleaned 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. "22 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 such damage to the Property within ten (10) days after receipt of written notice from City directing the required repairs, City may cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full reasonable 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 of this agreement. 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. 33. 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 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 confo1ui with such laws, or if not modifiable, then same shall be deemed severable, and 23 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. 34. 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. 35. 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 revocation of this Agreement without notice by the City Manager. 36, 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. 37. Conflict of Interest. Licensee is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dada 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 fally 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 farther 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. 24 33. Americans with Disabilities Ac 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 of irmative steps to ensure nondiscrimination in employment of disabled persons. 39. 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 focus of compensation. 40. 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 foith and correctness by the City Attorney, provided in writing and signed by both parties. 41. Attorney(s') Fees. in the event it becomes necessary for either party to institute legal proceedings to enforce the provisions of this Agreement, each party shall bear its own attorneys' fees through all trial and appellate levels. ?; 42. Litigation; Verne. 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 not intended to establish mediation as a condition precedent before pursuing specific perfonnance, equitable or injunctive relief 43. Waiver of Jury Trial. The parties hereby knowiingly, 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. 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 AD-eemen 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. 26 45. 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. 46. 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 is the result f 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. 47. Further Acts. in addition to the acts and deeds recited herein and contemplated to be perfoniied, 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. 48. 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. 49. No Partnership. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venture of the other. 50. Headings. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 27 51. Authority. Each of the parties hereto acknowledges it is duly authorized to enter into this Agreement and that the signatories below are duly authorized to execute this Agreement in their respective behalf. 52. Erttire 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. 53. Special Provisions. 54.1. Licensee shall create a special Reserve/Maintenance Fund to set -aside $5,000 to ensure that the interior and exterior building on the Property is painted every five (5) years. The Licensee shall issue an annual report to the City Manager and the Director as to the status and the amounts of this fend. The first such report shall be submitted on or before 12/31/12 to the City addresses listed in Paragraph 19. 54.2 Consistent with Paragraph 13.3 herein, Licensee shall obtain a Preventive Maintenance Report and present such report to the City Manager and the Director prior to the annual anniversary date of the Agreement, along with a plan of action as to how Licensee intends to perform any identified repairs on the Property. THIS SECTION LEFT ThTENT1ON ALLY BLANK 28 ENT WITNESS WHEREOF, the. parties hereto have executed this Agreement of the day and year first above written. ATTEST: ern' OF MIAMI, a municipal corooration 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 :R_EQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis, Director Department of Risk Management ATTEST: WITNESSES: By: Julie 0. Bru City Attorney LICENSEE: By: Signature Signature Print Name Print Name Signature Print Name 29 Title Authorized Officer Date CORPORATE SEAL EXHIBITEXHIB/T A PROPERTY Folio Number: 01-3134-028-0130 Lots 17-20 of the Washburn Subdivision, according to the Plat thereof as located in Plat Book 4, Page 112 of the Public Records of Miami -Dade County Florida. 30 EXHIBIT B REPORTING REQUIREMENTS TYPE OF REPORT DUE DATE Audited Financial Statement No later than 120 days after end of fiscal year Preventative Maintenance Report Anniversary Date of Agreement Reserve/Mainterance Fund Report By December 31 annually 31 EXHIBIT C INSURANCE REQUIREMENTS Commercial General Liability (Primary & Non Contributory) Limits of Liabilio-v Bodily Injury and Property Damage Liability Each Occurrence S1,000,000 General Aggregate Limit S 2,000,000 Products/Completed Operations S 1,000,000 Personal and Advertising Injury $1,000,000 Endorsements Required City of Miami included as an additional insured Contingent Liability (Independent Contractors Coverage) Contractual Liability Premises & Operations Liability II. Business Automobile Liabid Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hued, Borrowed or Non -Owned Autos Any One Accident S 1,000,000 Endorsements Required City of Miami included as an Additional Insured Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability Limits of Liability S100,000 for bodily injury caused by an accident, each accident. S1.00,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. Sexual Abuse and Molestation Coverage $250,000 Property Coverage "All Risk" special foiui coverage for Real and Business Personal Property coverage insuring against all risk of direct physical loss or damage, including coverage for theft, windstorm, hail, and flood, as applicable and insuring 100% replacement on the building and Licensee's improvements, including all its equipment, fixtures, furniture and all other personal property in and about the property. The policy or insurance certificate should further include coverage for sprinkle leakage, plate glass coverage, and business interruption and extra expense, preferably written on an actual loss sustained basis. The property certificate must show full 100% replacement cost basis valuation with a maximum deductible of S5,000 as to all other perils, and 5% on windstorm, hail. The City shall be named as an Additional Insured and loss payee on this coverage. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. The City reserves the right to reasonably amend the insurance requirements by the issuance of a notice iri writing to Licensee. The Licensee shall provide any other insurance or security reasonably required by the City. 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 ofBest'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.