HomeMy WebLinkAboutExhibit 1REVOCABLE LICENSE AGREEMENT
ISSUED BY THE
CITY OF MIAMI
TO
GROVE KEY MARINA, LLC.
FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT
3385 PAN AMERICAN DRIVE
MIAMI, FLORIDA 33133
V74-Cpia -02�-s�
TABLE OF CONTENTS
1. Recitals 2
2. Definitions 2
3. Purpose 3
4. Interest Conferred by this Agreement 3
5. Common Area. 4
6. Permitted Use 4
7. Occupancy, Teuil and Effect of Revocation 4
8. Continuous Duty to Operate. 5
9. Use Fee 6
10. Late Fee 7
11. Returned Check Fee. 7
12. Guaranty Deposit. 8
13. Reporting Requirements. 8
14. Services and Utilities. 10
15. Condition of the Property and Maintenance. 11
16. Alterations, Additions or Replacements. 12
17. Violations, Liens and Security Interests. 12
18. City Access to Property. 14
19. Indemnification and Hold Harmless. 14
20. Insurance. 16
21. No Liability. 16
22. Safety. 17
23. Taxes and Fees. 17
24. Revocation by Request of Either of the Parties Without Cause. 18
25. Revocation by City Manager for Cause. 18
26. Notices. 19
27. Advertising 19
28. Hazardous Materials. 20
29. Radon Gas 21
30. Licenses, Authorizations and Peiuiits. 22
31. Compliance with All Applicable Laws. 22
32. Ownership of Improvements 22
33. Surrender of Property 22
34. Termination of Prior Agreements. 23
35. Severability. 24
36. Invalidity. 24
37. No Assignment or Transfer 24
38. Public Records. 25
39. Conflict of Interest. 25
40. Americans with Disabilities Act. 25
41. Nondiscrimination 25
42. Amendments and Modifications. 26
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43. Litigation; Venue. 26
44. Waiver of Jury Trial. 26
45. Waiver 27
46. Time of Essence 27
47. No Interpretation Against Draftsmen 27
48. Further Acts. 27
49. Third Party Beneficiary 28
50. No Partnership. 28
51. Headings. 28
52. Authority. 28
53. Entire Agreement. 28
EXHIBIT A 30
DESCRIPTION OF THE PROPERTY 30
EXHIBIT B 31
INSURANCE 31
EXHIBIT C 33
EQUIPMENT LIST 33
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REVOCABLE LICENSE AGREEMENT
This Revocable License Agreement ("Agreement") is made this day of
2013 between the City of Miami ("City") a municipal corporation of the State of
Florida and Grove Key Marina, LLC, a Florida limited liability company incorporated under the
laws of the State of Florida ("Licensee").
Recitals
WHEREAS, the City of Miami ("City") is owner of certain real waterfront property
occupied and used by and operated as a marina and casual outdoor restaurant ("Property"); and
WHEREAS, the City underwent a competitive solicitation process for the use and
occupancy of the Property; and
WHEREAS, on May 10, 2012 the City of Miami Commission ("Commission") adopted
Resolution 12-0199 authorizing and directing the City Manager to execute a Revocable License
Agreement with Grove Key Marina, Inc. in order to continue uninterrupted revenue to the City,
uninterrupted service to the patrons of the waterfront marine facility and uninterrupted service to
the patrons of the fueling services while the City selected an operator to use and occupy said
Property; and,
WHEREAS, the Revocable License Agreement will tenuinate on December 31, 2012;
and
WHEREAS, the City will begin a new competitive solicitation process for the use and
. occupancy of the Property; and
WHEREAS, the City and Licensee desire to enter into an Agreement to continue
uninterrupted revenue to the City, uninterrupted service to the patrons of the waterfront marine
facility and uninterrupted service to the patrons of the fueling services; 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, subject to the terns herein; 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 January 1, 2013.
2.4 "Hazardous Material Laws" means all applicable requirements of federal, state
and local environmental, public health and safety laws, regulations, orders,
peunits, 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 of 19'75.
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 and
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operation of a marina with dry rack storage, indoor boat storage, a fuel station,
and an outdoor casual restaurant, and other incidental purposes affiliated with
those herein identified and currently in use on the Property, 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
5.24 +/- acres of upland property and 0.47 +/- acres of submerged property with a
mailing address of 3385 Pan American Drive, Miami, Florida, and with a Miami -
Dade County Folio #01-4122-002-0040, 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
those of a tenant, but are a mere personal privilege to do certain acts of a temporary character as
described herein on the Property and to use the Property, subject to the terns 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
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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
following: (i) operation of a marina with dry rack storage, indoor boat storage and a fuel station,
consistent with the existing use, and (ii) the operation of the existing outdoor casual restaurant,
and (iii) current uses affiliated with (i) and (ii) 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 (prorated to the tern hereof).
7. Occupancy, Term and Effect of Revocation.
A. This Agreement is revocable -at -will, subject to notice requirements below. Unless this
Agreement is revoked or terminated as provided in this Agreement, this Agreement shall
commence upon the Effective Date and shall continue on a month -to -month basis, provided
Licensee is not in violation of the Agreement, until the earlier to occur of: (i) revocation of this
Agreement by either party upon not less than sixty (60) days written notice, (ii) termination
pursuant to Paragraph 6, or (iii) the 31st day of December 2014.
B. Revocation by Licensee. Should Licensee revoke this Agreement, it shall be
obligated to provide the City with use of the equipment listed in Exhibit "C" attached hereto and
made a part hereof, solely for the present uses for such equipment on the Premises, for a period
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of six (6) months following the date of revocation, at no cost to the City. In such event, the City
shall indemnify Licensee, subject to the limitations and financial restrictions and limits provided
under section 768.28(5), Florida Statutes, or cause to have Licensee indemnified, by any third -
party, for any losses or injuries resulting from the City's or a third-party's negligent, grossly
negligent or wrongful use of the equipment listed in Exhibit "C". Further, the Licensee shall be
named as an additional insured on applicable insurance policies held by any third party operating
or using the equipment in the amounts set forth in Paragraph 20 herein.
C. Revocation by the City. Should the City revoke this Agreement either for cause or
for no cause, the Licensee shall be obligated to provide the City with the equipment listed in
Exhibit "C" for a period of four (4) months following the date of revocation, at no cost to the
City. Should the City decide to retain the equipment listed on Exhibit "C" for a period longer
than four (4) months following the date of revocation, it shall notify Licensee in writing prior to
the expiration of the time period, and it shall compensate Licensee a rental fee of Four Thousand
Five Hundred Dollars ($4,500.00) per month. In either such event, the City shall indemnify
Licensee, subject to the limitations and financial restrictions and limits provided under section
768.28(5), Florida Statutes, or cause to have Licensee indemnified, by any third -party, for any
losses or injuries resulting from the City's or a third-party's negligent, grossly negligent or
wrongful use of the equipment listed in Exhibit "C". Further, the Licensee shall be named as an
additional insured on applicable insurance policies held by any third party operating or using the
equipment in the amounts set forth in Paragraph 20 herein. The City's right to retain the
equipment listed on Exhibit "C" is limited to six (6) months from the date of revocation.
8. Continuous Duty to Operate.
Except where the Property is rendered unusable by reason of fire or other casualty,
Licensee shall at all times during this Agreement, occupy the Property upon the Effective Date
and shall thereafter continuously conduct operations in the Property in accordance with the terms
of this Agreement.
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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 Forty-three Thousand Fifty Dollars ($43,050.00),
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.
In addition, Licensee shall pay monthly 1/12 of the estimated annual ad valorem taxes
due on the Property. Therefore, Lessee shall pay the following cumulative amount monthly:
Use of the property to manage a marina and a casual outdoor restaurant
Amount for estimated monthly ad valorem taxes
TOTAL MONTHLY PAYMENT DUE TO THE CITY
$43,050.00
S 12,200.00
S55.250.00
Licensee shall be responsible. for any cost associated with its programs operated on the
Property, including but not limited to, security, equipment, and insurance. The actual payment
for ad valorem taxes shall be accurately adjusted up or down, in the final month of this
Agreement. The City shall notify Licensee of the valuation of the Property by providing a copy
of the TRIM notice.
9.2. Percentage Fee.
The Licensee shall prepare monthly gross sales reports as defined in Paragraph 13 herein.
The percentages for gross sales to determine the Percentage Fee due to the City will be as
follows:
Storage 10.3%
Hauling 10.3%
Special Handling 10.3%
License Fees 10.3%
Snack Shop, Casual Outdoor / Indoor
Restaurant 10.3%
Service 10.3%
Oil & Parking 10.3%
Gas 10.3%
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Diesel
Ships Store
10.3%
50.0%
9.3. Manner of Payment.
The monthly Use Fee shall be due on the 15th 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. 2" d Avenue, 6th 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 fifteenth 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 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
$00.01 - 50.00 $20.00
$50.01 - 300.00 $30.00
$300.01 - 800.00 $40.00
OVER $800 5% of the returned amount.
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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.
The City acknowledges that the Licensee has provided the City with a deposit in the
amount of Fifty-three thousand, two -hundred Dollars ($53,200.00), hereinafter referred to as the
Guaranty Deposit.
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 the City may be entitled
otherwise.
Provided Licensee is not in violation of this Az-eernent, 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.
13. Reporting Requirements.
13.1 Monthly Gross Sales
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Licensee shall submit on the 15th day of each month a report of Gross Sales for the
previous month. If acceptable to the Director, the form of this report shall be the monthly State
of Florida Sales and Use Tax Return. If directed by the Director, Licensee shall submit additional
reports as may reasonably be required. The form of such additional reports shall have the prior
approval of the Director and may require a statement of the Gross Sales by source of sale and/or
applicable report indicating the specific types of products sold including food, alcoholic and non-
alcoholic beverage 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 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 a financial statement which includes, among other
things, information on the Licensee's business operations for the fiscal year.
Such 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 financial statement and provided Licensee has commenced and diligently
pursued the completion of the financial statement, Licensee may request from the Director a
thirty (30) day extension to complete the fmancial 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 Tenn of this Agreement, and for a period
expiring three (3) years after the expiration of the tern, 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 reports. Said inspection shall be conducted at the
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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 or at such other address as Licensee may direct, if notice is required after the
termination 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, interne, 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 times be in a clean and sanitary condition and free from vermin.
Licensee agrees to provide any and all security it deems necessary to protect its
operations and equipment. Licensee shall insure that all appropriate equipment and lights have
been turned off and appropriate doors locked at the close of operations within the Property each
day. Licensee shall be responsible to take prudent preventive maintenance measures to safeguard
the Property from stones 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
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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 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 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.
During all times when the City, or a third party under its authorization pursuant to
Paragraph 7 above, is in possession of the equipment listed in Exhibit "C," such equipment shall
be maintained in its present condition, subject to normal wear and tear. The City, at its expense,
shall contract with a qualified fine for regular monthly inspections, maintenance and repair of
the equipment.
At the conclusion of the period when the City or any third party under its authorization
returns the equipment listed in Exhibit "C," the City and Licensee shall perform a final
inventory. The City shall compensate Licensee for loss or damage, beyond normal wear and
tear, to any equipment incurred during the time that the City or any third party was in possession
of the equipment.
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16. Alterations, Additions or Replacements.
Except in the event of an emergency, Licensee shall not make any repair in excess of
$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, 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 pennitting 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 pen -nit 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
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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 penult 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 in good faith proceed to contest the lien by appropriate
proceedings, (ii) the Licensee shall have given notice in writing to the City of its intention to
contest the validity of the lien, and (iii) the Licensee shall furnish and keep in effect a surety
bond of a responsible and substantial surety company reasonably acceptable to the City 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.
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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,
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 teinis 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 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 performance or non-performance of the services contemplated by this Agreement
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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 fonner 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 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 thus 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.
During any period of time where Licensee's equipment is used by the City or any third
party operating under the City's authority following termination under Paragraph 7 above, the
City shall indemnify, defend and hold harmless the Licensee 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 equipment contemplated by this Agreement
which is or is alleged to be directly or indirectly caused, in whole or in part, by any act,
15
omission, default or negligence (whether active or passive) of the City or its employees, agents
or subcontractors or third parties operating the equipment with the City's knowledge or authority
(collectively referred to as "City"), 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 City, 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 Licensee, its officials and/or employees; or (ii) the failure of the City to
comply with any of the paragraphs herein or the failure of the City to confoini to statutes,
ordinances, codes, rules, or other regulations or requirements of any governmental authority,
federal or state, in connection with the perfonnance of this Agreement. The City expressly
agrees to indemnify and hold hannless the Licensee, its officials and/or employees, or any of
them, from and against all liabilities which may be asserted by an employee or foinier employee
of City, or any of its subcontractors, as provided above, for which the City's liability to such
employee or former employee would otherwise be limited to payments under state Workers'
Compensation or similar laws.
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. The City is self insured. The City shall require any third party utilizing
Licensee's equipment during the periods described in Paragraph 7 above to comply with the
insurance requirements as set forth in Exhibit `B" and name Licensee as an additional insured.
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,
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,
16
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. Provided, however, that ad valorem real property taxes shall be
paid in 2013 and 2014, respectively, by the City using the funds that have been paid by the
Licensee pursuant to Paragraph 9 above. Licensee shall not be responsible for any amounts due
17
for ad valorem taxes incurred during the tern of this Agreement beyond the amount stated on the
tax bill as due in November 2013 and November 2014, respectively. If this Agreement is
terminated by either party before December 31, 2014, the ad valorem taxes payable by Licensee
shall be prorated to the date of termination.
The City shall be responsible for personal property taxes on the value of the property
listed on Exhibit "C" during any period it is in possession of same after termination of this
Agreement.
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 cash
escrow or 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. 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 sixty (60) days written notice to the non -revoking party prior to the effective date of the
revocation.
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
must pay its fees due to the City under this Agreement through the effective date of such
revocation. The City's obligations as set forth in this Agreement regarding the equipment listed
in Exhibit "C" shall survive any termination or expiration of this Agreement, so long as the
equipment remains in the City's custody or control.
25. Revocation by City Manager for Cause.
If at the sole and -complete discretion of the City Manager, Licensee in any manner
violates the restrictions, terns and conditions of this Agreement, then, and in the event, after
fifteen (15) days written notice given to Licensee by the City Manager within which to cease
18
such violation or correct such deficiencies, or begin to correct deficiencies that are by their
nature not correctable within 15 days, andupon failure of Licensee to do so after such written
notice within said fifteen (15) 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 teuiis of Paragraphs 7 and 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
be changed from time to time. Such notice shall be deemed given on the day on which
personally sensed; or if by certified mail, on the fifth day after being posted or the date of actual
receipt, whichever is earlier:
27.
CITY OF MIAMI
City of Miami
Office of the City Manager
444 SW 2 Avenue, 10th 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
Advertising.
LICENSEE
Grove Key Marina, Inc.
Attn: Scott Wessel
3385 Pan American Drive
Miami, FL 33130
Norman S. Segall, Esq.
801 Brickell Ave. #900
Miami, FL 33131
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
19
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 tunes. 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. The signage existing as of the date of this Agreement is in
compliance with the requirements in this section. Upon the cancellation of this Agreement,
Licensee shall, at its sole. cost and expense, remove any sign, decoration, advertising matter or
other thing pew witted 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.
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, enviromnental 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 pen -nits, licenses and
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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.
• This removal requirement shall not apply to the fuel tanks listed in Exhibit C, as they shall
remain on the Property as part of the fixtures inventory. 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 goverrunental
requirements. The requirements of this Paragraph of the License shall survive the cancellation or
revocation of this License.
The City represents that:
To the best of its knowledge there are no environmental violations, whether under
federal, state, or local laws, existing on the Property;
To the best of its knowledge there are no Hazardous Materials presently existing on the
Property.
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.
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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.
32. Ownership of Improvements.
As of the Effective Date and throughout the use period, all buildings and improvements
on the Property shall be vested with the City. Furthennore, 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, revocation or expiration of this Agreement, Licensee shall
peacefully surrender the Property in its current condition, reasonable wear and tear excepted,
together with all alterations, equipment and fixtures, installation, additions and improvements
• which may have been made in or attached on or to the Property. A listing of all equipment and
fixtures on the Property belonging to the Licensee is set forth in Exhibit "C".
In the event of termination, revocation or expiration of this Agreement, Licensee shall
allow the City to use the • equipment and fixtures set forth in Exhibit "C" for a period of four (4)
months after either termination or revocation of this Agreement, at no cost to the City. The City
22
shall pay rental fees as set forth in paragraph 7.C. for any additional time period beyond four (4)
months, . but no more than six (6) months. Licensee warrants that the equipment set forth in
Exhibit "C" are free and clear of all liens, including but not limited to UCC liens, leases and the
like.
Upon surrender, Licensee shall turn over to the City any and all security deposits,
advance rent .or other deposits/monies it has received from any subtenants or customers for
services or use of any part of the Property. Further, upon the earlier event to occur of (i) fifteen
(15) days following the issuance of a notice of revocation pursuant to Paragraph 7 or (ii) on
December 31, 2013, Licensee shall turn over to the City, in an electronic format, copies of any
and all vendor, customer and subtenant information, including but not limited to, contracts , lists,
files, etc. In addition, upon surrender (except as required by Paragraph 7), 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. The removal obligations set forth herein are subject to the provisions of
Paragraph 7, above.
34. Termination of Prior Agreements.
Licensee acknowledges the teinnnination of the Revocable License Agreement made and
entered on June 25, 2012 between it and the City, 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
23
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 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 confonn 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 umnodifned
and in full force and effect or limitation of its use.
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
24
Licensee shall result in the automatic revocation 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 tenns 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.
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
25
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 founs 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
not intended to establish mediation as a condition precedent before pursuing specific
performance, equitable or injunctive relief.
44. Waiver of Jury Trial.
The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right
either may have to a trial by jury in respect of any action, proceeding or counterclaim based on
this Agreement, or arising out of, under or in connection with this Agreement or any amendment
or modification of this Agreement, or any other agreement executed by and between the parties
in connection with this Agreement, or any course of conduct, course of dealing, statements
(whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a
material inducement for the City and Licensee entering into the subject transaction.
26
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 teuuns 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
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.
27
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 duly authorized to enter into this Agreement
and that the signatories below are duly authorized to execute this Agreement in their respective
behalf.
53. Entire Agreement.
This instrument and its attachznents 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.
28
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:
Dwight S. Danie, MSL 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
GROVE KEY MARINA, LLC.
By: By:
Signature Signature
Print Name Print Name
29
EXHIBIT A
DESCRIPTION OF THE PROPERTY
30
EXHIBIT B
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 following insurance coverage:
A. Commercial General liability written on a primary and non contributory basis, and
affording coverage for bodily injury, including death, and property damage,
including contingent and contractual exposures, premises and operations liability,
products and completed operations, and personal and advertising injury, with
limits of at least $1,000,000 .per occurrence: $2,000,000 policy aggregate
protecting against all claims, demands or actions in connection arising out of the
use of the property. The City of Miami shall appear listed as an additional insured
on this coverage.
B. "All Risk" special form coverage, including theft, windstorm and flood coverage,
and insuring 100% replacement cost on the building, and the 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. The City
of Miami shall appear listed as Loss Payee on this coverage.
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 respect to this coverage.
D. Workers' Compensation affording statutory limits for the State of Florida.
E. Liquor Liability with limits of $1,000,000 per occurrence, $1,000,000 aggregate.
F. Umbrella Liability (Excess Follow Fonn) with limits of $1,000,000 per
occurrence, $1,000,000 policy aggregate, and listing the City of Miami as an
additional insured.
G. Marine Operators Legal Liability with limits of $1,000,000 per occurrence.
H. 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
31
Licensee. The Licensee shall provide any other insurance or security reasonably
required by the City.
I. 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, 3rd Floor, Miami, Florida
33130, or such other address that may be designated from time to time.
J. 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. (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)
32
EXHIBIT C
EQUIPMENT LIST
GROVE KEY MARINA
Back Area (behind barns):
(59) Freestanding vessel rack pods (varying conditions)
(1) four wheel utility trailer — white (poor condition)
(2) six wheel working cradles (good condition)
Alley (between barns):
(1) 400 gallon diesel fuel tank — for marine forklifts (fair condition)
(1) Clark Forklift # TBD_ - blue (inoperable, poor condition)
(1) Clark Forklift #70-1041 - yellow (inoperable, poor condition)
North Barn (closest to Grove Harbour Marina):
(33) vessel working cradles (fair — good condition)
(15) approx. spare tires for working cradles (poor condition)
South Barn (closest to Pan American Drive)
(22) vessel working cradles (fair — good condition)
(4) spare propane tanks for Clark Forklifts
(2) Toro gasoline powered utility carts (good condition)
(1) Clark Forklift #802056 - green (operable, fair condition)
(1) Clark Forklift #355-7-3681 - red (operable, fair condition)
Fixed Standing Dry Storage Rack Sets (in front of barns):
West Side: (92) individual dry storage rack berths
East Side: (88) individual dry storage rack berths
(5) Freestanding vessel rack pods - north end (fair condition)
(3) vessel working cradles — north end (good condition)
(6) sets misc. vessel jack stands — east side (fair condition)
(7) vessel wash racks — east side (good condition)
South End Pods (along Pan American Drive)
(13) Freestanding vessel rack pods (fair condition)
(1) vessel working cradle (good condition)
Addl. Forklifts
Taylor Model TM120 12K Lift Capacity Forklift #SU229962 (fair condition)
Hoist Model TM250 25K Lift Capacity Forklift #28562 (good condition)
Hoist Model TM270 27K Lift Capacity Forklift #28845 (good condition)
Fueling
(1) 4K gl. Diesel above ground storage tank
(2) 2K gl. Gasoline above ground storage tanks
(2) gasoline fuel dispensers(1) diesel fuel dispenser
SCOTTY'S LANDING RESTAURANT
(To be inserted prior to execution)
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