HomeMy WebLinkAboutExhibit 1 SUBuki fide
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REVOCABLE LICENSE AGREEMENT
ISSUED BY THE
CITY OF MIAMI
TO
THE SCHOOL BOARD OF MIAMI-DADE COUNTY
FOR THE OCCUPANCY OF THE PROPERTY
LOCATED AT 3501 RICKENBACKER CAUSEWAYMIAMI, FLORIDA
TABLE OF CONTENTS
1. Recitals 2
2, Definitions 2
3, Permitted Use(s). 3
4. Manner of Property Use. 4
5. Occupancy and Use Period 5
6. Duty to Operate for Public Purpose 5
7. Interest Conferred by this Agreement. 5
8. Use Fee, , 6
9. Condition of the Property and Maintenance. 7
I0. Services and Utilities. 7
11. Performance of Improvements, Alterations, Additions, Replacements. 9
13. City Access to Property. 11
14. No Liability. 12
15. Additional Expenses 13
16. Indemnification and Hold Harmless. 13
17. Insurance 14
18, Safety. 15
19. Taxes and Fees 15
20. Revocation By Request Of Either Of The Parties Without Cause. 15
21. Automatic Revocation By City Manager For Cause. 16
22. Notices, 16
The School Board of Miami -Dade County, Florida 17
23. Advertising. 17
24, Hazardous Materials. . 18
25, Radon Gas 19
26. Licenses, Authorizations and Permits. 20
27. Compliance with all Applicable Laws 20
28. Surrender of Area and Property. 20
29. Severability. 21
30. Invalidity 21
31. No Assignment or Transfer. 22
32, Public Records 22
33. Conflict of Interest 22
34. Americans with Disabilities Act 22
35. Nondiscrimination. 23
36. Amendments and Modifications. 23
37. Attorney(s') Fees. 23
38. Litigation; Venue 23
39. Waiver of Jury Trial. 24
40. Waiver. 24
41. Time of Essence 24
42. No Interpretation Against Draftsmen. ,..24
43. Further Acts. 25
44. Third Party Beneficiary. 25
45. No Partnership. 25
46. Headings. 25
47, Authority 25
48. Execution requirement 25
49. Bond compliance. 26
50. Entire Agreement 26
EXHIBITS
Exhibit A Area(s)
Exhibit. B Property
ii
REVOCABLE LICENSE AGREEMENT
This Revocable License Agreement ("Agreement") is entered this day of
2012, (but is effective as of the Effective Date as hereinafter defined) by and
between the City of Miami, a municipal corporation of the State of Florida ("City"), and The
School Board of Miami -Dade County, Florida, a body corporate and politic existing under the
laws of the State of Florida. ("Licensee"), together the Parties ("Parties").
RECITALS
WHEREAS, the City and the Licensee ("Parties") desire and intend to enter into a
Revocable License Agreement ("Agreement") for the use of City -owned property located at
3501 Rickenbacker Causeway, Miami, Florida ("Property"); and
WHEREAS, this Agreement is not assignable; and
WHEREAS, this Agreement is revocable at -will by the City and without the consent of
the Licensee; and
WHEREAS, this Agreement does not transfer an interest in real property including any
leasehold interest in real property owned by the City; and
WHEREAS, this Agreement does not confer a right to use any real property for any
general purposes; and
WHEREAS, this Agreement 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 confers no exclusive possession of the Property; and
WHEREAS; this Agreement does not convey or transfer any right to exclude the City
from any real property; and
REVOCABLE LICENSE AGREEMENT/SS & CITY OF MIAMI/ 11-29-12
WHEREAS, the City and Licensee desire to enter into a Revocable License Agreement;
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:
1. Recitals.
The foregoing recitals arc hereby incorporated and made a part of this Agreement.
2. Definitions.
2.1 "Area(s)" shall mean the certain portions of the Property defined as Exhibit A
attached hereto located at 3501 Rickenbacker Causeway, situated in Miami,
Florida, designated for the Licensee's use, identified in Exhibit A attached hereto
and incorporated herein.
2.2 "City Manager" is the City Manager for the City of Miami,
2,3 "City -sponsored Event" shall mean an event sponsored by the City on the
Property.
2.4 "Director" shall mean the Director of the Department of Public Facilities for the
City of Miami.
2.5 "Effective Date" shall be as defined in Paragraph 5.
2.6 "Environmental 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
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Prevention and Control Act; the Water Resources Restoration and Preservation
Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking
Water Act; and the Florida Environmental Reorganization Act of 1975.
2.7 "Parties" shall mean the City and the Licensee.
2.8 "Permitted Use(s)" means the specific uses for which the Licensee has been
authorized to operate and use the designated Areas within the Property, namely,
primarily for school parking purposes as more particularly described in Paragraph
3.
2.9 "Property" shall mean the approximately acres of City -owned real property
and improvements located at 3501 Rickenbacker Causeway, Miami, Florida, as
more particularly shown and described in the map found in Exhibit "B" attached
hereto and made a part hereof.
2.10 "School Year" shall mean the term for which educational classes and courses are
provided by the Licensee at the Maritime and Science Technology (MAST)
Academy. The Licensee shall provide to the Director a copy of its School. Year
calendar sixty (60) days prior to the commencement of the Licensee's School
Year.
2.11 "Special Event" shall mean activities held within the Areas of the Property which
exceed the scope of the activities conducted at the Property and outlined in
Paragraph 3 of this Agreement.
2.12 "Use Fee" is the monthly fee that Licensee shall pay to the City for the use of the
Property.
3. Permitted Use(s).
3.1 Permitted Use(s).
Subject to existing zoning, all governmental restrictions and the issuance of this
Agreement, this Agreement authorizes the Licensee, its officers, employees and invitees to
occupy and use the Areas detailed in Exhibit A attached herewith and incorporated herein by
reference, primarily for free school parking purposes and for no other purpose whatsoever
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("Permitted Uses") only from Monday through Sunday between the hours of 6:00 a.m. and 5:00
p.m. The Licensee shall request prior written consent from the City Manager to use the Areas
and Property for any other use or hours of operation, and Licensee shall not be authorized to use
the Areas and Property for that use until the Licensee has received the written consent of the City
Manager, which consent may be approved, conditioned or withheld in his or her sole discretion.
Licensee and its patrons shall access and exit the Area within the Property solely through
designated areas and shall not use any areas not designated as proper entrance and exist points.
Licensee shall ensure that all Licensee's programs will be staffed during the program's hours of
operation and that all children participating in the Licensee's program(s) shall be fully
supervised.
The Licensee is strictly prohibited from operating and offering any water sports activities
on the Areas and Property, including but not limited to kayaking, paddle boarding, sailing,
fishing, jetski and motorized vessel activities. The sale, distribution and/or consumption of
alcoholic beverages at the Property is prohibited. Similarly, Licensee is prohibited from
operating any concession sales of any type.
Licensee shall operate, manage, supervise and administer activities during its use of the
Property as an independent contractor and not as an employee of the City.
3.2 Special Events.
Licensee shall not host any Special Event without first obtaining the prior written
approval of the Director, which approval may be withheld, conditioned, or approved in the
Director's sole discretion. Any violation of these prohibitions may result in the automatic
termination of this Agreement pursuant to Paragraph 21 of this Agreement.
Absent any authorized written waivers as described above, Licensee's failure to obtain
the required Special Events permit and to pay any and all required fees shall constitute a
violation of this Agreement and cause for subsequent automatic termination within the terms of
Paragraph 21 herein.
4. Manner of Property Use.
Licensee's use of the Property is nonexclusive and Licensee acknowledges that the City
and other users may use the Property and Licensee's use shall not conflict with other Property
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users. Licensee shall not be able to use the Area during the annual international regatta which
the Miami Rowing Club ("MRC") hosts or the annual professional tennis tournament which
Miami -Dade County hosts (currently known as the Sony Open Tennis Tournament.) Licensee
shall have the opportunity to temporarily use another area within the Property during the times in
which the MRC and Miami -Dade County use the AreaThe Licensee shall provide written request
to the City of the temporary alternate area it wishes to utilize, for approval by the City Manager
or designee.
Licensee acknowledges and agrees to abide by the terms and obligations related to this
Agreement as to the Permitted Uses, manner of operation, designated use areas and maintenance
and utility obligations.
5. Occupancy and Use Period.
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 continue for a period of thirty-six months until the
first to occur of the following; (i) revocation or termination of this Agreement by either Party
upon written notification pursuant to Paragraph 20, or (ii) automatic termination of this
Agreement subject to the notice provisions of Paragraph 21 herein. The Effective Date of this
Agreement ("Effective Date") shall be the first of the month following the execution date by
both Parties.
6. Duty to Operate for Public Purpose.
Licensee, at all times during Licensee's use of the Areas shall: (i) utilize the Areas solely
in furtherance of the Permitted Uses described in Paragraph 3 herein; and (ii) operate educational
programs serving children.
7. Interest Conferred by this Agreement.
This Agreement confers no exclusive possession or tenancy of the Area or Property.
The Licensee cannot exclude the City from the Area. Licensee agrees that this Agreement has
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been issued by the City to authorize Licensee to occupy the Areas solely for the limited purpose
of a school parking lot, along with limited ancillary uses therein and for no other purpose.
This Agreement solely authorizes Licensee to the temporary use of the Area 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 Area, subject to the terms of this Agreement.
The City retains dominion, possession and control of the Area. Therefore, no lease interest in the
Area 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 Area by virtue of
this Agreement or its use of the Area hereunder. Additionally, Licensee does not and shall not
claim at any time any interest or estate of any kind or extent whatsoever in the Area by virtue of
any expenditure of funds by the Licensee for Improvements, construction, repairs, partitions, or
alterations to the Area which may be authorized by the City.
8. Use Fee.
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 Use Fee of SO, plus
State of Florida State Use Tax, if applicable for the license to use the City's Property. The Use
Fee shall be due each month without notice or demand. Payments shall be made payable to
"City of Miami" and shall be mailed to the following address:
City of Miami
Finance Department
ATTN: Treasury Management/Receipts
444 S.W. 2nd Avenue, 6`h Floor
Miami, Florida 33130
Licensee shall be responsible for any cost associated with its programs operated on the
Property, including but not limited to, security, equipment, and insurance during its operating
hours.
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9. Condition of the Property and Maintenance.
Licensee accepts the Area "as is", in its present condition and state of repair and without
any representation 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 Area or the Property. Licensee, at its sole cost,
shall maintain the Area in good order and repair during its period of use and in an attractive,
clean, safe and sanitary condition and shall suffer no waste or injury thereto, ordinary wear and
tear excepted. License shall be responsible for all repairs to the Area required as a result of
Licensee's use thereof. Licensee shall be responsible for the maintenance and condition of the
Area during its period of use and shall perform repairs required in a timely manner so as to
prevent injury to person and waste to property.
Licensee agrees to make all changes necessary to the Area at Licensee's sole cost and
expense in order to comply with all City, county, state and federal code requirements for
Licensee's use or occupancy thereof.
10. Services and Utilities.
10.1 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, storm water fees, gas, telephone, television, cable,
telecommunications, internet, garbage and sewage disposal used by Licensee during its
occupancy of the Area, 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.
Licensee, at its sole cost, shall install and maintain all utilities required for its use of the
Area during its period of use and install separate utility meters and arrange separate and direct
billing to Licensee by the applicable utility company for such services. In the event that the City
is billed for any additional utility or service that is a result of Licensee's use of the Property, the
Licensee shall reimburse such amount to the city within five (5) calendar days of notification of
the City's receipt of said bill. Licensee and its Program Consultants, representatives, agents or
patrons shall not use the City's telephone equipment or services.
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In the event that separate meters and/or accounts cannot be established for all utilities
which may include, but is not limited to, electricity, water, storm water fees, gas, telephone,
television, cable, telecommunications, internet, garbage and sewage disposal used by Licensee,
Licensee agrees to pay to the City an amount of zero dollars and zero cents ($0) per month, plus
State Use Tax, if applicable ("Utilities Fee"). This amount shall be paid in advance and in full on
the first day of each month, without notice or demand. Licensee shall pay to the City the first
installment of the Utilities Fee on the first (15`) day of the month following the execution of this
Agreement and thereafter on the first (Ist) day of each and every month that Licensee continues
to occupy and use the Property.
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 Area, as needed, to insure that the Area will during
Licensee's period of use 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 any of its vehicles parked within the Area from storms and other "Acts of God" as
that term is defined by Florida law.
10.2 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 Area, 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
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shall iti 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 Dr directives. Licensee shall not claim any damages by reason of the City's or other
individu_al's interruption, curtailment or suspension of a utility service, nor shall the Revocable
License orany of Licensee's obligations hereunder be affected or reduced thereby.
11. -Performance of Improvements, Alterations, Additions; Replacements.
licensee is authorized to install, at its own expense, a temporary fence on the perimeter of
the Area it is authorized to use. The temporary fence shall have at least two double -wide gates,
as described in Exhibit C, to provide boats taking part in the Miami Rowing Club's annual
international regatta with enough room to enter, turn and exit the Area. Prior to construction of
the fence, Licensee must obtain the approval of the City's Zoning Administrator. Upon the
termination of this Agreement, the Licensee shall restore the Area to its original, or better, state.
licensee is authorized to build, at its own expense, and utilize during Licensee's period of
use of the Area, a temporary walkway from the easternmost section of the park area to connect it
to the 'westernmost edge of the MAST property, as described in Exhibit C. The walkway shall
have a. gate to ensure that it is closed during the times the Licensee, its employees, students, or
contractors are not using it. Upon the termination of -this Agreement, the Licensee shall restore
this particular area to its original, or better, state.
Except in the event of an emergency, Licensee shall not make any Improvement,
alteration, addition or replacement required or permitted to be performed by Licensee unless and
until Licensee shall have caused plans and specifications therefore to be prepared, at Licensee's
sole expense, by an architect or other duly qualified person and shall have obtained City
Manager's approval, which approval may be conditioned or withheld for any or no reason
whatsoever_
The Licensee shall submit to the City the plans and specifications. The Licensee shall be
solely resporrsible 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
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Improvements, alterations, additions or replacements including, but not limited to, design,
construction, installation, and permitting costs.
All Improvements, alterations, additions or replacements to the Area 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 Area,
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. By the installation of any improvement, alteration, addition or replacement,
the City shall not be excluded from the Property.
12. Violations, Liens and Security Interests.
The Licensee shall not suffer or permit any tax, statutory, laborers, material person, or
construction liens to be filed against the title to the Area or 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
Area. 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 Area 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 fling 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
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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 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 (11O%) 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.
13. City Access to Property.
City and its authorized representative(s) shall have at all times access to the Area. City
will maintain a complete set of keys to the Area. Licensee, at its sole cost and expense, may
duplicate or change key locks to the Area 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 Area at any time to (a) inspect the Area,
(b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after
written notice thereof to Licensee, Licensee, not having cured such matter within ten (10) days
of such notice, (c) to assure Licensee's compliance with the terms and provisions of this
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Agreement and all applicable laws, ordinances, codes, rules and regulations, (d) to show the
Property, inclusive of the Area, 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, and
provided such activities do not unreasonably interfere with the Licensee's use of the Property
or Area. 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.
14. 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, their
officers, agents, employees, invitees or patrons occurring in or about the Property that may be
stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam,
electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of
the Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures of the Areas or Property, or
from hurricane or any act of God or any act of negligence of any user of the facilities or
occupants of the Areas or Property or any person whomsoever whether such damage or injury
results from conditions arising upon the Areas or Property or upon other portions of the Property
or from other sources, except damage or injury resulting from the negligent performance or
failure of performance on the part of the City, its agents, representatives or employees, or failure
of the City to perform its covenants under this Agreement. Subject to the limitations included
within Section 768.28, Florida Statutes, Licensee indemnifies the City its officers, agents and
employees from and against any and all such claims except for claims, costs, liabilities, suits,
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actions, damages or causes of action arising from the negligence or alleged negligence of the
City, including any of its employees, agents, or officials.
Subject to the limitations included within Section 768.28, Florida Statutes, Licensee
further acknowledges that as lawful consideration for being granted the right to utilize and
occupy the Areas or Property, Licensee, on behalf of itself, its 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 Areas or
Property, other than injury, death or property damage resulting from the negligent performance
or failure of performance on the part of the City, its agents, representatives or employees, or
failure of the City to perform its covenants under this Agreement.
15. Additional Expenses.
Under no circumstances will the City be liable for any costs or expenses incurred by
Licensee under this Agreement or as a result of its programs or related activities beyond those
that are specifically set forth in this Agreement.
16. Indemnification and Hold Harmless.
Subject to the limitations included within Section 768.28, Florida Statutes, Licensee shall
indemnify and hold harmless the City and its officials, employees and agents (collectively
referred to as "Indemnitces") and each of them from and against all loss, costs, penalties, fines,
damages, claims, expenses (excluding attorney's fees) or liabilities (collectively referred to as
"Liabilities") by reason of any injury to or death of any person or damage to or destruction or
loss of any property arising out of, resulting from, or in connection with (i) the performance or
non-performance of the services contemplated by this Agreement which is or is alleged to be
directly or indirectly caused, in whole or in part, by any act, omission, default or negligence
(whether active or passive) of Licensee or its employees, agents or subcontractors (collectively
referred to as "Licensee"), 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 orstate, in
connection with, the performance of this Agreement. However, nothing herein shall be deemed
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to indemnify the City from any liability or claim arising out of the negligent performance or
failure of performance of the City. Licensee expressly agrees to indemnify and hold harmless the
Indemnitees, or any of them, to the extent of the limitations included within Section 768.28,
Florida Statutes, from and against all liabilities which may be asserted by an employee or former
employee of Licensee, or any of its subcontractors, as provided above, for which the Licensee's
liability to such employee or former employee would otherwise be limited to payments under
state Workers' Compensation or similar laws.
Licensee further voluntarily and knowingly acknowledges that, as lawful consideration
for being granted the right to utilize and occupy the Area, Licensee, on behalf of itself, its 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 Area, other than injury, death or property damage resulting from the
negligent performance or failure of performance on the part of the City, its agents,
representatives or employees, or failure of the City to perform its covenants under this
Agreement. The Licensee affirms that the granting of this Agreement is good, sufficient and
independent consideration granted by the City for this Indemnification and Hold Harmless,
which shall survive the termination or expiration of the Agreement. Nothing in this Agreement is
intended to operate as a waiver of either Party's sovereign immunity.
Specifically, Licensee acknowledges that the Property and the Area are prone to heavy
flooding and assumes the risk inherent to Licensee's use of said Property associated with said
flooding.
17. Insurance.
Licensee shall, on or before the Effective Date, and all times during the term of this
Agreement, provide the City with confirmation of Licensee's self-insurance program. Licensee
shall at all times during the term of this Agreement, maintain such self-insurance program
subject to the limitations included within Section 768.28, Florida Statutes.
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18. 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 inspections). Upon issuance of a notice to proceed, the Licensee
shall contact.the Risk Management Department at (305) 416-1700 to schedule the inspection(s),
19. Taxes and Fees.
Licensee shall pay before any fine, penalty, interest or costs is added for nonpayment,
any and all charges, fees, taxes or assessments, including, but not limited to, ad valorem taxes,
fire fees and parking surcharges, if any, and for which either the City or Licensee are not
otherwise exempt, (collectively "Assessments"), levied against the Area or its proportionate
share of use of the Property, or against personal property of any kind, owned by or placed in,
upon or about the Property by Licensee. In the event Licensee appeals an Assessment, Licensee
shall immediately notify the City of its intention to appeal said Assessment and shall furnish and
keep in effect a surety bond of a responsible and substantial surety that is reasonably acceptable
to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one
hundred percent of the contested Assessment with all interest on it and costs and expenses,
including reasonable attorneys' fees, to be incurred in connection with it, Licensee agrees to pay
such Assessments either in lump sum or on an installment plan.
Failure of the Licensee to pay any Assessment or any installment payment thereof shall
constitute a violation under this Agreement,
20. 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
revocation.
15
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.
21. Automatic Revocation By City Manager For Cause.
Licensee and its Program Consultants agree to abide by each and every term and
condition of this Agreement. If Licensee or its Program Consultants violate the restrictions and
conditions of this Agreement in any manner, then, and in that event, after thirty (30) days
written notice given to Licensee by the City Manager within which to cease such violation or to
begin to correct such deficiencies, and upon failure of Licensee to do so after such written
notice, within said thirty (30) day period, this Agreement shall be automatically revoked
without the need for further action by the City.
Upon such automatic revocation, Licensee shall abide by the terms of Paragraphs 16
and 26 herein.
22. Notices.
All notices or other communications, which shall or may be given pursuant to this
Agreement shall be in writing and shall be delivered by hand or registered mail addressed to the
other party at the address indicated herein. Such notice shall be deemed given on the day on
which hand delivered or mailed, on the fifth day after being posted or the date of actual receipt,
whichever is earlier.
If to City of Miami:
With a copy to:
City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
City Attorney
City of Miami
444 SW 2nd Avenue, Suite 945
Miami, Florida 33130
16
If to Licensee:
With a copy to:
With a copy to:
Department of Parks & Recreation
City of Miami
444 SW 2" Avenue, 8th Floor
Miami, Florida 33130
Department of Public Facilities
City of Miami
444 SW 2" Avenue, 31-d Floor
Miami, Florida 33130
The School Board of Miami -Dade County, Florida
c/o Superintendent of Schools
School Board Administration Building
1450 N.E. Second Avenue, Room 912
Miami, Florida 33132
Fax: 305-995-1488
Miami -Dade County Public Schools
Planning, Design and Sustainability
Attention: Eco-Sustainability Officer
1450 NE. Second Avenue, Room 525
Miami, Florida 33132
Fax:: 305-995-4760
E-mail: ariio(udadeschoofs.net
The School Board of Miami -Dade County, Florida
School Board Attorney's Office
1450 NE 2"tl Avenue, #400
Miami, FL 33132
Attn: School Board Attorney
Fax: 305-995-1412
E-mail: Walter.Harvey@dadeschools,net
23. Advertising.
Licensee shall not permit any signs or advertising matter to be placed either in the
interior or upon the exterior of the Area or 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
17
such sign, decoration, advertising matter or other things as may be permitted hereunder in good
condition and repair at all times. Licensee must further obtain approvals, permits, or other
required approvals by whatever name called, from all governmental authorities having
jurisdiction, and must comply with all applicable requirements set forth in the Miami -Dade
County Code, the City of Miami Code and Zoning Ordinance, Any signage existing as of the
date of this Agreement is in compliance with the requirements in this paragraph. Upon the
revocation or expiration of this Agreement, Licensee shall, at its sole cost and expense, remove
from the Property any sign, decoration, advertising matter or other thing permitted hereunder
that Licensee placed within the Area. If any part of the Area or 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 Area or Property
within ten (10) days after receipt of written notice from City directing the required repairs, City
shall cause the Area or Property to be repaired at the sole cost and expense of Licensee.
Licensee shall pay City the full cost of such repairs within thirty (30) days of receipt of an
invoice indicating the cost of such required repairs. Licensee hereby understands and agrees
that the City rnay, at its sole discretion, erect or place upon the Property an appropriate sign,
plaque or historic marker indicating City's having issued this Agreement.
24. Hazardous Materials.
The Licensee shall, at its sole cost and expense, at all times and in all respects comply
with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings,
policies, orders and administrative actions and orders relating to hazardous materials
("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws
relating to industrial hygiene, environmental protection or the use, storage, disposal or
transportation of any flammable explosives, toxic substances or other hazardous, contaminated
or polluting materials, substances or wastes, including, without limitation, any "Hazardous
Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances" (collectively
"Hazardous Materials"), under any such laws, ordinances or regulations. The Licensee shall, at
its sole cost and expense, procure, maintain in effect and comply with all conditions of any and
all permits, licenses and other governmental and regulatory approvals relating to the presence
18
of Hazardous Materials within, on, under or about the Area or Property or required for the
Licensee's use of any Hazardous Materials in or about the Area or Property in conformity with
all applicable Hazardous Materials Laws and prudent industry practices regarding management
of such Hazardous Materials. Upon revocation or expiration of this Agreement, the Licensee
shall, at its sole cost and expense, cause all Hazardous Materials, including their .storage
devices, placed in or about the Area or Property by the Licensee or at the Licensee's direction,
to be removed from the Area or Property and transported for use, storage or disposal in
accordance and compliance with all applicable Hazardous Materials Laws. The Licensee may
operate according to the custom of the industry so long as the use or presence of Hazardous
Materials is strictly and properly monitored according to, and in compliance with, all applicable
governmental requirements. The requirements of this Paragraph shall survive the revocation or
expiration of this Agreement.
The City represents that:
To the best of its knowledge there are no environniental 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.
25. 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 Agreement.
19
26. 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 activities.
Licensee shall be responsible for paying the cost of said applications and obtaining said
Licenses, authorizations and permits.
27. 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 and the City 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.
28. Surrender of Area and Property.
In either event of termination or revocation of this Agreement, Licensee shall peacefully
surrender the Area broom cleaned and in good condition and repair together with ail alterations,
fixtures, installation, additions and improvements which may have been made in or attached on
or to the Area by Licensee, ordinary wear and tear or damage caused by unrelated third parties
excepted.
Licensee shall promptly remove all its personal property, trade fixtures and equipment
and Licensee shall repair any damage to the Area caused by Licensee. Should Licensee fail to
repair such damage to the Area within thirty (30) days after receipt of written notice from City
directing the required repairs, City may cause the Area to be repaired at the sole cost and
expense of Licensee. Licensee shall pay City the full reasonable cost of such repairs within
thirty (30) days of receipt of an invoice indicating the cost of such required repairs. At City's
option, City may require Licensee to restore the Area so that the Area shall be as it was on the
Effective Date of this Agreement, ordinary wear and tear or damage caused by unrelated third
parties excepted.
20
in the event Licensee fails to remove its personal property, equipment and fixtures from
the Area 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.
29. 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 infull force and effect.
With regard to those provisions which do not affect the Parties intent for this
Agreement, should any provision, section, paragraph, sentence, word or phrase contained in
this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or
otherwise unenforceable under the laws of the State .of Florida or the City of Miami, such
provision, section, paragraph, sentence, word or phrase shall be deemed modified to the extent
necessary in order to conform with such laws, or if not modifiable, then same shall be deemed
severable, and in either event, the remaining terms and provisions of this Agreement shall
remain unmodified and in full force and effect or limitation of its use.
30. 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.
21
31. No Assignment or Transfer.
Licensee shall not sell, assign this Agreement, or any part thereof to any other party.
The License granted by this Agreement is personal to the Licensee. Licensee cannot assign,
sell or transfer its privilege of occupancy and use granted unto it by this Agreement. Any
assignment, sale or disposition of this Agreement by Licensee, whether voluntary or
involuntary, contrary to the foregoing provision shall result in the automatic revocation of this
Agreement without notice by the City Manager.
32. 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.
33. Conflict of Interest.
Licensee is aware of the conflict of interest laws of the City of Miami (Miami City
Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.)
and of the State of Florida as set forth in the Florida Statutes, as amended, and agrees that it
will fully comply in all respects with the terms of said laws and any future amendments thereto.
Licensee covenants that no person or entity under its employ, presently exercising any
functions or responsibilities in connection with this Agreement, has any personal financial
interests, direct or indirect, with the City. Licensee further covenants that, in the performance
of this Agreement, no person or entity having such conflicting interest shall be utilized in
respect to services provided hereunder. Any such conflict of interest(s) on the part of Licensee,
its employees or associated persons, or entities must be disclosed in writing to the City.
34. 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
22
disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall
take affirmative steps to ensure nondiscrimination in employment of disabled persons.
35. 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 Area
and improvements thereon, or against any employee or applicant for employment because of
race, ancestry, nationalorigin, color, sex, religion, age, disability, familial status, marital status
or sexual orientation. Licensee and/or its authorized agents will insure that its employees are
fairly treated during employment without regard to their race, national origin, ancestry, color,
sex, religion, age, disability, familial status, marital status or sexual orientation. Such action
shall include, but not be limited to, the following: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other
forms of compensation.
36. Amendments and Modifications.
No amendments or modifications to this Agreement shall be binding on either party
unless approved by the City Commission and School Board (or authorized designee), approved
as to legal form and correctness by the City Attorney, provided in writing and signed by both
Parties.
37. Attorney(?) 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.
38. Litigation; Venue.
The Parties shall resolve any dispute or civil action through the Florida Governmental
Conflict Resolution Act.
23
39. Waiver of Jury Trial.
The Parties hereby knowingly, irrevocably, voluntarily and intentionally waive any
right either may have to a trial by jury in respect of any action, proceeding or counterclaim
based on this Agreement, or arising out of, under or in connection with this Agreement or any
amendment or modification of this Agreement, or any other agreement executed by and
between the Parties in connection with this Agreement, or any course of conduct, course of
dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of
jury trial provision is a material inducement for the City and Licensee entering into the subject
transaction.
4O Waiver.
Any waiver by either party or any breach by either party of any one or more of the
covenants, conditions or provisions of this Agreement shall not be construed to be a waiver of
any subsequent or other breach of the same or any covenant, condition or provision of this
Agreement, nor shall any failure on the part of the City to require or exact full and complete
compliance by Licensee with any of the covenants, conditions or provisions of this Agreement
be construed as in any manner changing the terms hereof to prevent the City from enforcing in
full the provisions hereto, nor shall the terms of this Agreement be changed or altered in any
manner whatsoever other than by written agreement of the City and Licensee.
41. 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.
42. 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
24
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.
43. 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.
44. 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.
45. No Partnership.
Nothing contained herein shall make, or be construed to make any party a principal,
agent, partner or joint venture of the other.
46. Headings.
Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
47. 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.
48. Execution requirement.
Licensee shall execute this Agreement no later than thirty (30) calendar days following
City Commission approval. Licensee's failure to execute the Agreement within this time frame
shall result in an automatic revocation of the City Commission's approval.
25
49. Bond compliance.
The Parties acknowledge that, if applicable, the Parties shall comply with any and all
bond obligations and restrictions, including but not limited to, Homeland
Defense/Neighborhood Improvements Improvement Bonds, Sunshine State Loan Pool and
Internal Revenue Service conditions.
50. .Entire Agreement.
This Agreement and its attachments constitute the sole and only agreement of the
Parties hereto and correctly set forth the rights, duties and obligations of each to the other as of
its date. Any prior agreements, promises, negotiations or representations not expressly set forth
in this Agreement are of no force or effect.
51.. Authority of Superintendent.
For purposes of this Agreement, the Superintendent of Schools or his/her designee shall
be the party designated by the Licensee to grant or deny any and all approvals required under
this Agreement, including, without limitation, reviewing and approving all matters relating to
the Licensee's construction of improvements on the Property or Area, if any, or any approvals
required by .this .Agreement for the renewal, extension, cancellation and/or termination of this
Agreement as provided herein, or temporary use by Licensee of other areas within the Property.
52. Damage and Destruction
The Parties agree that in the event of cancellation of the Agreement due to damage or
destruction, the Licensee shall surrender the Area to the City in compliance with this Agreement.
Any damage or destruction sustained to the Area or Property as a result of Licensee's actions
shall be repaired by the Licensee, at the Licensee's expense.
THIS SPACE LEFT BLANK INTENTIONALLY
26
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
REQUIREMENTS: CORRECTNESS:
By: By:
Calvin Ellis, Director
Department of Risk Management
Julie O. Bru
City Attorney
ATTEST: LICENSEE:
WITNESSES: THE SCHOOL BOARD OF MIAMI-DADE
COUNTY, FLORIDA, a body corporate and
politic existing
under the laws of the State of Florida
By: By:
Signature Alberto M. Carvalho, Superintendent
of Schools
Corporate Secretary
27
Print Name
Date
TO LICENSEE: APPROVED AS TO
FORM AND LEGAL SUFFICIENCY:
School Board Attorney
28
EXHIBIT A
AREA(S)
29
EXHIBIT B
PROPERTY
FOLIO #
DESCRIPTION
30
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Summary Bela Hi:
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REVOCABLE LICENS AGREEMENT
ISSUE P BY THE
CITY f F MIAMI
TO
THE SCHOOL BO OF MIAMI-DADE COUNTY
FOR THE OCC FANCY OF THE PROPERTY
LOCATED AT 3501 RIC NBACKER CAUSEWAYMIAMI, FLORIDA
TABLE OF CONTENTS
1. Recitals. 2
2. Definitions. 2
3. Permitted Use(s). 3
4. Manner of Property Use. 4
5. Occupancy and Use Period. 5
6. Duty to Operate for Public Purpose. 5
7. Interest Conferred by this Agreement 5
8. Use Fee. 6
9. Condition of the Property and Maintenance. 7
10. Services and Utilities. 7
11, Performance of Improvements, Alterations, Additions, Repia :-ments 9
13. City Access to Property. 11
14. No Liability. 12
15. Additional Expenses. 13
16. Indemnnification and Hold Harmless. 13
17. Insurance. 14
18. Safety. 15
19. Taxes and Fees. 15
20. Revocation By Request Of Either Of The Parties .F'ithout Cause 15
21. Automatic Revocation By City Manager For Ca e. 16
22. Notices. 16
The School Board of Miami -Dade County, Florida 17
23. Advertising 17
24. Hazardous Materials. 18
25. Radon Gas. 19
26. Licenses, Authorizations and Permits... 20
27. Compliance with all Applicable Laws. 20
28. Surrender of Area and Property. 20
29. Severability. 21
30. Invalidity.
31. No Assignment or Transfer
32. Public Records.
33. Conflict of Interest.
34. Americans with Disabilities Act.
35. Nondiscrimination
36. Amendments and Modifications.
37. Attorney(s') Fees.
38. Litigation; Venue.
39. Waiver of Jury Trial.
40. Waiver.
41. Time of Essence.
42. No Interpretation Against Draftsmen
43. Further Acts.
44. Third Party Beneficiary.
45. No Partnership.
46, Headings.
47. Authority.
48. Execution requirement.
49. Bond compliance.
50. Entire Agreement.
EXHIBITS
Exhibit A Area(s)
Exhibit B Property
ii
21
22
22
22
22
23
23
23
23
24
24
24
24
25
25
25
25
25
25
26
26
REVOCABLE LICENSE AGREEMENT
This Revocable License Agreement ("Agreement") is entered this day of
, 2012, (but is effective as of the Effective Date as hereinafter define ri) by and
between the City of Miami, a municipal corporation of the State of Florida ("City '), and The
School Board of Miami -Dade County, Florida, a body corporate and politic exis ng under the
laws of the State of Florida. ("Licensee"), together the Parties ("Parties").
RECITALS
WHEREAS, the City and the Licensee ("Parties") desire and in t: d to enter into a
Revocable License Agreement ("Agreement") for the use of City-owne• property located at
3501 Rickenbacker Causeway, Miami, Florida ("Property"); and
WHEREAS, this Agreement is not assignable; and
WHEREAS, this Agreement is revocable at -will by the City . ld without the consent of
the Licensee; and
WHEREAS, this Agreement does not transfer an interest i real property including any
leasehold interest in real property owned by the City; and
WHEREAS, this Agreement does not confer a right t.. use any real property for any
general purposes; and
WI-IEREAS, this Agreement permits only certain, en
uses and does not permit anything further; and
WHEREAS, this Agreement is subject to the audi
erated, specific, listed permitted
and inspection rights set forth in
Sections 18-100 and 18-102 of the Code of the City of M ami, Florida as amended ("Code");
and
WHEREAS, this Agreement confers no exclusive .ossession of the Property; and
WHEREAS, this Agreement does not convey or transfer any right to exclude the City
from any real property; and
REVOCABLE LICENSE AGREEMENT/SB & CITY OF MIAM1/ 11-29-12
and
WHEREAS, the City and Licensee desire to enter into a Revocable License Agreement;
WHEREAS, the Parties jointly and voluntarily stipulate as to the accury of these
recitals; and
NOW THEREFORE, in consideration of the mutual covenants set firth herein, the
Parties hereby agree as follows:
1. Recitals.
The foregoing recitals are hereby incorporated and made a part of his Agreement.
2. Definitions.
2.1 "Area(s)" shall mean the certain portions of the Pr+perty defined as Exhibit A
attached hereto located at 3501 Rickenbacker useway, situated in Miami,
Florida, designated for the Licensee's use, identifr-d in Exhibit A attached hereto
and incorporated herein.
2.2 "City Manager" is the City Manager for the Ci of Miami.
2.3 "City -sponsored Event" shall mean an ev -it sponsored by the City on the
Property.
2,4 "Director" shall mean the Director of the /Department of Public Facilities for the
City of Miami. 1
2.5 "Effective Date" shall be as defined in aragraph 5.
2.6 "Environmental Laws" means all applicable requirements of federal, state and
local environmental, public health nd safety laws, regulations, orders, permits,
licenses, approvals, ordinances an, directives, including but not limited to, all
applicable requirements of: the C an Air Act; the Clean Water Act; the Resource
Conservation and Recovery Ac as amended by the Hazardous and Solid Waste
Amendments of 1984; the afe Drinking Water Act; the Comprehensive
Environmental Response, Co pensation and Liability Act, as amended by the
Superfund Amendments anc Reauthorization Act of 1986; the Occupational
Health and Safety Act; the T. is Substances Control Act; the Pollutant Discharge
2
Prevention and Control Act; the Water Resources Restoration and Preservation
Act; the Florida Air and Water Pollution Control Act; the Florida Saf- 'Drinking
Water Act; and the Florida Environmental Reorganization Act of 197
2.7 "Parties" shall mean the City and the Licensee.
2.8 "Permitted Use(s)" means the specific uses for which the Li r ensee has been
authorized to operate and use the designated Areas within th- Property, namely,
primarily for school parking purposes as more particularly dcribed in Paragraph
3.
2.9 "Property" shall mean the approximately acres o City -owned real property
and improvements located at 3501 Rickenbacker Ca seway, Miami, Florida, as
more particularly shown and described in the map fr nd in Exhibit "B" attached
hereto and made a part hereof.
2.10 "School Year" shall mean the term for which ed ational classes and courses are
provided by the Licensee at the Maritime a Science Technology (MAST)
Academy. The Licensee shall provide to the ► irector a copy of its School Year
calendar sixty (60) days prior to the co -ncement of the Licensee's School
Year.
2.11 "Special Event" shall mean activities held ithin the Areas of the Property which
exceed the scope of the activities conucted at the Property and outlined in
Paragraph 3 of this Agreement.
2.12 "Use Fee" is the monthly fee that Lice ii see shall pay to the City for the use of the
Property.
3. Permitted Use(s).
3.1 Permitted Use(s).
Subject to existing zoning, all gover _ ental restrictions and the issuance of this
Agreement, this Agreement authorizes the censee, its officers, employees and invitees to
occupy and use the Areas detailed in Exhibi i A attached herewith and incorporated herein by
reference, primarily for free school parking umoses and for no other purpose whatsoever
3
("Permitted Uses") only from Monday through Saturday between the hours of 6:04,a.m. and 5:00
i`
p.m. The Licensee shall request prior written consent from the City Manager too use the Areas
and Property for any other use or hours of operation, and Licensee shall not be/authorized to use
the Areas and Property for that use until the Licensee has received the written/consent of the City
Manager, which consent may be approved, conditioned or withheld in his of her sole discretion.
Licensee and its patrons shall access and exit the Area within the
designated areas and shall not use any areas not designated as proper
Licensee shall ensure that all Licensee's programs will be staffed du
operation and that all children participating in the Licensee's
supervised.
The Licensee is strictly prohibited from operating and off 'ring any water sports activities
on the Areas and Property, including but not limited to kay ing, paddle boarding, sailing,
fishing, jetski and motorized vessel activities. The sale, distribution and/or consumption of
alcoholic beverages at the Property is prohibited.
operating any concession sales of any type.
Licensee shall operate, manage, supervise and administer activities during its use of the
Property as an independent contractor and not as an employee of the City.
3.2 Special Events.
Licensee shall not host any Special Event without first obtaining the prior written
approval of the Director, which approval may be withheld, conditioned, or approved in the
Director's sole discretion. Any violation of thenprohibitions mayresult in the automatic
Y
termination of this Agreement pursuant to Paragr h 21 of this Agreement.
Absent any authorized written waivers s described above, Licensee's failure to obtain
the required Special Events permit and to p y any and all required fees shall constitute a
violation of this Agreement and cause for subsequent automatic termination within the terms of
Paragraph 21 herein.
roperty solely through
(trance and exist points.
g the program's hours of
fprogram(s) shall be fully
4. Manner of Property Use.
Licensee's use of the Property is nonexclusive and Licensee acknowledges that the City
and other users may use the Property and Licensee's use shall not conflict with other Property
Similfrly, Licensee is prohibited from
4
users. Licensee shall not be able to use the Area during the annual international regatta' which
the Miami Rowing Club ("MRC") hosts or the annual professional tennis tourname t which
Miami -Dade County hosts (currently known as the Sony Open Tennis Tournament. Licensee
shall have the opportunity to temporarily use another area within the Property during the times in
which the MRC and Miami -Dade County use the AreaThe Licensee shall provide tten request
to the City of the temporary alternate area it wishes to utilize, for approval by th City Manager
or designee.
Licensee acknowledges and agrees to abide by the terms and obliga 'ons related to this
Agreement as to the Permitted Uses, manner of operation, designated use a has and maintenance
g p g �
and utility obligations.
5. Occupancy and Use Period.
This Agreement is revocable -at -will, subject to the notice r quirements below. Unless
this Agreement is revoked or terminated as provided in this Agr ement, this Agreement shall
commence on the Effective Date and shall continue for a period/of thirty-six months until the
first to occur of the following: (i) revocation or termination ot7 this Agreement by either Party
upon written notification pursuant to Paragraph 20, or (') automatic termination of this
Agreement subject to the notice provisions of Paragraph 2 herein. The Effective Date of this
Agreement ("Effective Date") shall be the first of the mrnth following the execution date by
both Parties.
6. Duty to Operate for Public Purpose.
Licensee, at all times during Licensee's use .f the Areas shall: (i) utilize the Areas solely
in furtherance of the Permitted Uses described in aragraph 3 herein; and (ii) operate educational
programs serving children.
7. Interest Conferred by this Agreem nt.
This Agreement confers no excluslive possession or tenancy of the Area or Property.
The Licensee cannot exclude the City from the Area. Licensee agrees that this Agreement has
5
been issued by the City to authorize Licensee to occupy the Areas solely for the li y ited purpose
of a school parking lot, along with limited ancillary uses therein and for no other urpose.
This Agreement solely authorizes Licensee to the temporary use o the Area for the
limited purposes set forth herein and for no other purpose. The Parties reby agree that the
provisions of this Agreement do not constitute a lease. The rights of Lice + see hereunder are not
those of a tenant, but are a mere personal privilege to do certain acts a temporary character
described herein on the Property and to use the Area, subject to the terms of this Agreement.
The City retains dominion, possession and control of the Area. There ore, no lease interest in the
Area is conferred upon Licensee under the provisions hereof. Lic nsee does not and shall not
claim at any time any interest or estate of any kind or extent what Dever in the Area by virtue of
this Agreement or its use of the Area hereunder. Additionally, icensee does not and shall not
claim at any time any interest or estate of any kind or extent w tsoever in the Area by virtue of
any expenditure of funds by the Licensee for Improvements, r r nstruction, repairs, partitions, or
alterations to the Area which may be authorized by the City.
S. Use Fee.
Commencing on the Effective Date of this Agree ent, and on the first day of each month
thereafter during the term of the Agreement, Licensee s all pay to the City a Use Fee of $0, plus
State of Florida State Use Tax, if applicable for the li ense to use the City's Property. The Use
Fee shall be due each month without notice or de and. Payments shall be made payable to
"City of Miami" and shall be mailed to the follow]. g address:
City o iami
Finance epartment
ATTN: Treasury anagement/Receipts
444 S.W. 2"Avenue, 6th Floor
Miami Florida 33130
Licensee shall be responsible for ny cost associated with its programs operated on the
Property, including but not limited to, ecurity, equipment, and insurance during its operating
hours.
6
9. Condition of the Property and Maintenance.
Licensee accepts the Area "as is", in its present condition and state of repair!and without
any representation 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 Area or the Property. Licensee,; at its sole cost,
shall maintain the Area in good order and repair during its period of use an/ in an attractive,
clean, safe and sanitary condition and shall suffer no waste or injury thereto,/ordinary wear and
tear excepted. License shall be responsible for all repairs to the Area required as a result of
Licensee's use thereof. Licensee shall be responsible for the maintenance/ and condition of the
Area during its period of use and shall perform repairs required in a mely manner so as to
prevent injury to person and waste to property.
Licensee agrees to make all changes necessary to the Area a Licensee's sole cost and
expense in order to comply with all City, county, state and fed = ral code requirements for
Licensee's use or occupancy thereof.
10. Services and Utilities.
10.1 Licensee's Responsibilities.
Licensee, at its sole cost and expense, shall pay for 1 utilities which may include, but
is not limited to, electricity, water, storm water fees, as, telephone, television, cable,
telecommunications, internet, garbage and sewage dis osal used by Licensee during its
occupancy of the Area, as well as all costs for inst lation of any lines and equipment
necessary. Licensee, at its sole cost, shall install, as ap icable, all utilities required for its use,
and arrange for direct utility billing from all applicabl utility companies for such services.
Licensee, at its sole cost, shall install and m intain all utilities required for its use of the
Area during its period of use and install separate itility meters and arrange separate and direct
billing to Licensee by the applicable utility comp.ny for such services. In the event that the City
is billed for any additional utility or service that/is a result of Licensee's use of the Property, the
Licensee shall reimburse such amount to the city within five (5) calendar days of notification of
the City's receipt of said bill. Licensee and :its Program Consultants, representatives, agents or
patrons shall not use the City's telephone equipment or services.
7
In the event that separate meters and/or accounts cannot be established forrall utilities
which may include, but is not limited to, electricity, water, storm water fees, gas, telephone,
television, cable, telecommunications, internet, garbage and sewage disposal used by Licensee,
Licensee agrees to pay to the City an amount of zero dollars and zero cents ($0 ' per month, plus
State Use Tax, if applicable ("Utilities Fee").This amount shall be paid in adrrance and in full on
pp (
the first day of each month, without notice or demand. Licensee shall pay to the City the first
installment of the Utilities Fee on the first (1st ) day of the month followin the execution of this
Agreement and thereafter on the first (15I) day of each and every month,/ at Licensee continues
to occupy and use the Property. /
The City is not a guarantor or in any manner responsible fq( payment of Licensee's
responsibilities as they are set forth in this Agreement.
Licensee, at its sole cost and expense, shall provide cleam g and janitorial services and
hire pest and termite control services for the Area, as needed, to sure that the Area will during
Licensee's period of use be in a clean and sanitary condition free from vermin.
Licensee agrees to provide any and all security 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 s f operations within the Property each
day. Licensee shall be responsible to take pruden preventive maintenance measures to
safeguard any of its vehicles parked within the Are.. from storms and other "Acts of God" as
that term is defined by Florida law.
10.2 City's Responsibility.
City, at its sole cost, shall pay for the folj.wing utilities: None.
The City reserves the right to inte pt, curtail or suspend the provision of any utility
service provided by it, including but not invited to, heating, ventilating and air conditioning
systems and equipment serving the Are , to which Licensee may be entitled hereunder, when
necessary by reason of accident or env gency, 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 bey d the reasonable control of the City. The work of such
repairs, alterations or improvem nts shall be prosecuted with reasonable diligence. The City
8
shall in no respect be liable for any failure of the utility companies or governmental autr lorities
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 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.,
11. Performance of Improvements, Alterations, Additions, Replacements.
Licensee is authorized to install, at its own expense, a temporary fenceon the perimeter of
the Area it is authorized to use. The temporary fence shall have at least tvto double -wide gates,
as described in Exhibit C, to provide boats taking part in the Miami Ikowing Club's annual
international regatta with enough room to enter, turn and exit the Area. Prior to construction of
the fence, Licensee must obtain the approval of the City's Zoning dministrator. Upon the
termination of this Agreement, the Licensee shall restore the Area to i original, or better, state.
Licensee is authorized to build, at its own expense, and utiliz during Licensee's period of
use of the Area, a temporary walkway from the easternmost sectio of the park area to connect it
to the westernmost edge of the MAST property, as described in xhibit C. The walkway shall
have a gate to ensure that it is closed during the times the Lic isee, its employees, students, or
contractors are not using it. Upon the termination of this Ag ement, the Licensee shall restore
this particular area to its original, or better, state.
Except in the event of an emergency, Licensee shall not make any Improvement,
alteration, addition or replacement required or permitted t be performed by Licensee unless and
until Licensee shall have caused plans and specificatio : therefore to be prepared, at Licensee's
sole expense, by an architect or other duly qualifi • d person and shall have obtained City
Manager's approval, which approval may be conI. boned or withheld for any or no reason
whatsoever.
The Licensee shall submit to the City the plans and specifications. The Licensee shall be
solely responsible for applying and acquiring all, ,necessary permits, including but not limited to,
building permits. The Licensee shall be resposible for any and all costs associated with any
9
Improvements, alterations, additions or replacements including, but not limited to, d sign,
construction, installation, and permitting costs.
1
All Improvements, alterations, additions or replacements to the Area shall,/ unless
otherwise provided by written agreement of the Parties hereto, immediately uV'vn their
completion become the property of the City and shall remain and be surrendered with the Area.
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 afny other agency
that may have jurisdiction over the Property as they presently exist and' as they may be
amended hereafter. By the installation of any improvement, alteration, addiion or replacement,
the City shall not be excluded from the Property.
12. Violations, Liens and Security Interests.
The Licensee shall not suffer or permit any tax, statutory, lanorers, material person, or
construction liens to be filed against the title to the Area or the Property, nor against any
alteration by any reason, including but not limited to, by reason . f work, labor, services, tax
liabilities or materials supplied to the Licensee or anyone havi : a right to possession of the
Area. Nothing in this Agreement shall be construed as consti ting the consent or request of
the City, expressed or implied, by inference or otherwise, 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 Area n/r 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 co struction liens against the Property. If
any construction, tax or other lien shall at any time b7 filed against the Property, the Licensee
shall cause it to be discharged of record within fi ten (15) days after the date the Licensee
acquires knowledge of its filing. If the Licensee s all fail to discharge a construction or other
lien within that period, then in addition to any otr er 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
10
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 amo nt 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 payme is 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 (11 O%) of the
amount of the contested lien claim with all interest on it and cost 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 . d all claims, demands and
expenses, including reasonable attorney's fees, by reason of . ny claims of any contractor,
subcontractor, material person, laborer or any other third p-: son with whom Licensee has
contracted or otherwise is found liable for, in respect to the Pr.perty.
13. City Access to Property.
City and its •authorized representative(s) shall have . t all times access to the Area. City
will maintain a complete set of keys to the Area. Licen ee, at its sole cost and expense, may
duplicate or change key locks to the Area but not until rst receiving written approval from the
Director for such work. In the event Licensee changekey 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 ind the Area at any time to (a) inspect the Area,
(b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after
written notice thereof to Licensee, Licensee not having cured such matter within ten (10) days
of such notice, (c) to assure Licensee's compliance with the terms and provisions of this
11
Agreement and all applicable laws, ordinances, codes, rules and regulations, (d) to dhow the
Property, inclusive of the Area, to prospective purchasers or tenants, and (e) for oth r purposes
1
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, and
provided such activities do not unreasonably interfere with the Licensee's use of the Property
or Area. 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 inspecti9in or the failure to do so
shall not operate to impose upon City any liability of any kind vfiatsoever nor relieve the
Licensee of any responsibility, obligations or liability assumed undejthis Agreement.
14. No Liability.
In no event shall the City be liable or responsible fof injury, loss or damage to the
property, improvements, fixtures and/or equipment belongin1 to or rented by Licensee, their
officers, agents, employees, invitees or patrons occurring in or about the Property that may be
stolen, destroyed, or in any way damaged, including, wig out limitation, fire, flood, steam,
electricity, gas, water, rain, vandalism or theft which may eak or flow from or into any part of
the Property, or from the breakage, leakage, obstruction other defects of the pipes, sprinklers,
wires, appliances, plumbing, air conditioning or ligh ' g fixtures of the Areas or Property, or
from hurricane or any act of God or any act of negligence of any user of the facilities or
occupants of the Areas or Property or any person wwhomsoever whether such damage or injury
results from conditions arising upon the Areas or P 4erty or upon other portions of the Property
or from other sources, except damage or injury/resulting from the negligent performance or
failure of performance on the part of the City, its'agents, representatives or employees, or failure
of the City to perform its covenants under this Agreement. Subject to the limitations included
within Section 768.28, Florida Statutes, Licensee indemnifies the City its officers, agents and
employees from and against any and all such claims except for claims, costs, liabilities, suits,
12
actions, damages or causes of action arising from the negligence or alleged negligence o the
City, including any of its employees, agents, or officials.
Subject to the limitations included within Section 768.28, Florida Statutes, Licensee
further acknowledges that as lawful consideration for being granted the right to utilize and
occupy the Areas or Property, Licensee, on behalf of itself, its agents, invitees and en ployees,
does hereby release from any legal liability the City, its officers, agents and employee, from any
and all claims for injury, death or property damage resulting from Licensee's use of e Areas or
Property, other than injury, death or property damage resulting from the negligent .erforrnance
or failure of performance on the part of the City, its agents, representatives or rnployees, or
failure of the City to perform its covenants under this Agreement.
15. Additional Expenses.
Under no circumstances will the City be liable for any costs or ex oenses incurred by
Licensee under this Agreement or as a result of its programs or related ac vities beyond those
that are specifically set forth in this Agreement.
16. Indemnification and Hold Harmless.
Subject to the limitations included within Section 768.28, Flail a Statutes, Licensee shall
index reify and hold harmless the City and its officials, employe: and agents (collectively
referred to as "Indemnitees") and each of them from and against al loss, costs, penalties, fines,
damages, claims, expenses (excluding attorney's fees) or liabilit'-s (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 conne ion with (i) the performance or
non-performance of the services contemplated by this Agree ent which is or is alleged to be
directly or indirectly caused, in whole or in part, by any . t, omission, default or negligence
(whether active or passive) of Licensee or its employees, gents or subcontractors (collectively
referred to as "Licensee"), or, (ii) the failure of the icensee to comply with any of the
paragraphs herein or the failure of the Licensee to confnrm to statutes, ordinances, codes, rules,
or other regulations or requirements of any gove7nmental authority, federal or state, in
connection with the performance of this Agreement. 'However, nothing herein shall be deemed
13
to indemnify the City from any liability or claim arising out of the negligent performance or
failure of performance of the City. Licensee expressly agrees to indemnify and ho : harmless the
Indenmitees, or any of them, to the extent of the limitations included within Section 768.28,
Florida Statutes, from and against all liabilities which may be asserted by an ployee or former
employee of Licensee, or any of its subcontractors, as provided above, for ' hich the Licensee's
liability to such employee or former employee would otherwise be limbed to payments under
state Workers' Compensation or similar laws.
Licensee further voluntarily and knowingly acknowledges th. , as lawful consideration
for being granted the right to utilize and occupy the Area, Licensee, • behalf of itself, its agents,
invitees and employees, does hereby release from any legal liabili the City, its officers, agents
and employees, from any and all claims for injury, death or p operty damage resulting from
Licensee's use of the Area, other than injury, death or property damage resulting from the
negligent performance or failure of performance on the part of the City, its agents,
representatives or employees, or failure of the City to .erform its covenants under this
Agreement. The Licensee affirms that the granting of t Agreement is good, sufficient and
independent consideration granted by the City for thi Indemnification and Hold Harmless,
which shall survive the termination or expiration of the Agreement. Nothing in this Agreement is
intended to operate as a waiver of either Party's sovereign immunity.
Specifically, Licensee acknowledges that the Property and the Area are prone to heavy
flooding and assumes the risk inherent to Licensee's use of said Property associated with said
flooding,
17. Insurance.
Licensee shall, on or before the Effective Date, and all times during the term of this
Agreement, provide the City with confir tion of Licensee's self-insurance program. Licensee
shall at all times during the team of th s Agreement, maintain such self-insurance program
subject to the limitations included withii Section 768.28, Florida Statutes.
14
18. 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, rul s, regulations
and ordinances. By performing these inspections the City, its agents, or repres htatives are not
assuming any liability by virtue of these laws, rules, regulations and ordinanc 's. Licensee shall
have no recourse against the City, its agents, or representatives from t occurrence, non-
occurrence or result of such inspection(s). Upon issuance of a notice to f oceed, the Licensee
shall contact the Risk Management Department at (305) 416-1700 to schele the inspection(s).
19. Taxes and Fees.
Licensee shall pay before any fine, penalty, interest or costs is added for nonpayment,
any and all charges, fees, taxes or assessments, including, but not mited to, ad valorem taxes,
fire fees and parking surcharges, if any, and for which either e City or Licensee are not
otherwise exempt, (collectively "Assessments"), levied against the Area or its proportionate
share of use of the Property, or against personal property of a kind, owned by or placed in,
upon or about the Property by Licensee. In the event Licensee appeals an Assessment, Licensee
shall immediately notify the City of its intention to appeal said Assessment and shall furnish and
keep in effect a surety bond of a responsible and substantial surety that is reasonably acceptable
to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one
hundred percent of the contested Assessment with all interest on it and costs and expenses,
including reasonable attorneys' fees, to be incurred in connection with it. Licensee agrees to pay
such Assessments either in lump sum or on an installment plan.
Failure of the Licensee to pay any Assessment or any installment payment thereof shall
constitute a violation under this Agreement.
20. 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 n n-revoking party prior to the effective date of the
revocation.
15
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.
21. Automatic Revocation By City Manager For Cause.
Licensee and its Program Consultants agree to abide by each and every term and
condition of this Agreement. If Licensee or its Program Consultants violate, the restrictions and
conditions of this Agreement in any manner, then, and in that event, after thirty (30) days
written notice given to Licensee by the City Manager within which to cease such violation or to
begin to correct such deficiencies, and upon failure of Licensee to do so after such written
notice, within said thirty (30) day period, this Agreement shall be automatically revoked
without the need for further action by the City.
Upon such automatic revocation, Licensee shall abide by the terms of Paragraphs 16
and 26 herein.
22. Notices.
All notices or other communications, which shall or may be given pursuant to this
Agreement shall be in writing and shall be delivered by hand or registered mail addressed to the
other party at the address indicated herein. Such notice shall be deemed given on the day on
which hand delivered or mailed, on the fifth day after being posted or the date of actual receipt,
whichever is earlier.
If to City of Miami:
With a copy to:
City Manager
City of Miami
3500 Pan American Drive
Miami, Florida 33133
City Attorney
City of Miami
444 SW 2nd Avenue, Suite 945
Miami, Florida 33130
16�
If to Licensee:
With a copy to:
With a copy to:
Department of Parks & Recreation
City of Miami
444 SW 2"d Avenue, 8th Floor
Miami, Florida 33130
Department of Public Facilities
City of Miami
444 SW 2"d Avenue, 3rd Floor
Miami, Florida 33130
The School Board of Miami -Dade County, Florida
c/o Superintendent of Schools
School Board Administration Building
1450 N.E. Second Avenue, Room 912
Miami, Florida 33132
Fax: 305-995-1488
Miami -Dade County Public Schools
Planning, Design and Sustainability
Attention: Eco-Sustainability Officer
1450 N.E. Second Avenue, Room 525
Miami, Florida 33132
Fax: 305-995-4760
E-mail: arijo@dadeschools.net
The School Board of Miami -Dade County, Florida
School Board Attorney's Office
1450 NE 2"d Avenue, #400
Miami, FL 33132
Attn: School Board Attorney
Fax: 305-995-1412
E-mail: Walter.Harvey@dadeschools.net
23. Advertising.
Licensee shall not permit any signs or adv rasing matter to be placed either in the
interior or upon the exterior of the Area or Property without having first obtained the approval
of the Director or his/her designee, which appro fral may be withheld for any or no reason, at
his/her sole discretion. Licensee shall, at its sole cost and expense, install, provide, maintain
17
such sign, decoration, advertising matter or other things as may be permitted hereunder in good
condition and repair at all times. Licensee must further obtain approvals, permits, or other
required approvals by whatever name called, from all governmental authorities having
jurisdiction, and must comply with all applicable requirements set forth in the Miami -Dade
County Code, the City of Miami Code andZoning Ordinance. Any signage existing as of the
date of this Agreement is in compliance with the requirements in this paragraph. Upon the
revocation or expiration of this Agreement, Licensee shall, at its sole cost and expense, remove
from the Property any sign, decoration, advertising matter or other thing permitted hereunder
that Licensee placed within the Area. If any part of the Area or 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 Area or Property
within ten (10) days after receipt of written notice from City directing the required repairs, City
shall cause the Area or Property to be repaired at the sole cost and expense of Licensee.
Licensee shall pay City the full cost of such repairs within thirty (30) 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.
24. Hazardous Materials.
The Licensee shall, at its sole cost and expense, at all times and in all respects comply
with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings,
policies, orders and administrative actions and orders relating to hazardous materials
("Hazardous Materials Laws"), including, without limitation, any Hazardous Materials Laws
relating to industrial hygiene, environmental protection or the use, storage, disposal or
transportation of any flammable explosives, toxic substances or other hazardous, contaminated
or polluting materials, substances or wastes, including, without limitation, any "Hazardous
Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances" (collectively
"Hazardous Materials"), under any such laws, ordinances or regulations. The Licensee shall, at
its sole cost and expense, procure, maintain in effect and comply with all conditions of any and
all permits, licenses and other governmental and regulatory approvals relating to the presence
1g
of Hazardous Materials within, on, under or about the Area or Property or required for the
Licensee's use of any Hazardous Materials in or about the Area or Property in conformity with
all applicable Hazardous Materials Laws and prudent industry practices regarding management
of such Hazardous Materials. Upon revocation or expiration of this Agreement, the Licensee
shall, at its sole cost and expense, cause all Hazardous Materials, including their storage
devices, placed in or about the Area or Property by the Licensee or at the Licensee's direc on,
to be removed from the Area or Property and transported for use, storage or dispsal in
accordance and compliance with all applicable Hazardous Materials Laws. The Lice see may
operate according to the custom of the industry so long as the use or presence of a7ardous
Materials is strictly and properly monitored according to, and in compliance with, 311 applicable
governmental requirements. The requirements of this Paragraph shall survive t e revocation or
expiration of this Agreement.
The City represents that:
To the best of its knowledge there are no environmental viola ions, whether under
federal, state, or local laws, existing on the Property;
To the best of its knowledge there are no Hazardous Materials p esently existing on the
Property.
25. Radon Gas.
Radon is a naturally occurring radioactive gas that, whe it has accumulated in a building
in sufficient quantities, may present health risks to persons ho are exposed to it over time.
Levels of radon that exceed federal and state guidelines hav 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 standalyds, the City may choose to reduce the
radon level to an acceptable EPA level, failing which eith} Party may cancel this Agreement.
19
26. 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 ederal licenses,
authorizations and permits that are necessary for Licensee to conduct its act ities.
Licensee shall be responsible for paying the cost of said applicatio ► s and obtaining said
licenses, authorizations and permits.
27. Compliance with all Applicable Laws.
Licensee accepts this Agreement and hereby ackni ledges 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 and the Cit , shall comply therewith as the same
presently exist and as they may be amended hereafter. ► is Agreement shall be construed and
enforced according to the laws of the State of Florida.
28. Surrender of Area and Property.
In either event of termination or revocati • of this Agreement, Licensee shall peacefully
surrender the Area broom cleaned and in good ondition and repair together with all alterations,
fixtures, installation, additions and improve ents which may have been made in or attached on
or to the Area by Licensee, ordinary wear end tear or damage caused by unrelated third parties
excepted.
Licensee shall promptly remove 11 its personal property, trade fixtures and equipment
and Licensee shall repair any damage t the Area caused by Licensee. Should Licensee fail to
repair such damage to the Area withi thirty (30) days after receipt of written notice from City
directing the required repairs, City ay cause the Area to be repaired at the sole cost and
expense of Licensee. Licensee sh 1 pay City the full reasonable cost of such repairs within.
thirty (30) days of receipt of an iry oie6 indicating the cost of such required repairs. At City's
option, City may require Licenses to restore the Area so that the Area shall be as it was on the
Effective Date of this Agreement, ordinary wear and tear or damage caused by unrelated third
parties excepted.
20
In the event Licensee fails to remove its personal property, equipment and fixtures rom
the Area within the time limit set by the notice, said property shall be deemed abandons and
thereupon shall become the sole personal property of the City. The City, at its sole di retion
and without liability, may remove and/or dispose of same as City sees fit, all at Licensee's sole
cost and expense. /
29. 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 prow ion of this Agreement,
or the application thereof to any circumstance, suggest that a lease, other than a license, has
been created, then such provision shall be interpreted in the light m st favorable to the creation
of a license and (ii) if any provision of this Agreement, or t application thereof to any
circumstance, is determined by a court of competent jurisdicti •. to have created a lease rather
than a license, then such provision shall be stricken and, tthe fullest extent possible, the
remaining provisions of this Agreement shall not be affe• ed thereby and shall continue to
operate and remain in full force and effect.
With regard to those provisions which do n. affect the Parties intent for this
Agreement, should any provision, section, paragraph, : entente, word or phrase contained in
this Agreement be determined by a court of compel nt jurisdiction to be invalid, illegal or
otherwise unenforceable under the laws of the Stat of Florida or the City of Miami, such
provision, section, paragraph, sentence, word or phrse shall be deemed modified to the extent
necessary in order to conform with such laws, or if of modifiable, then same shall be deemed
severable, and in either event, the remaining ten s and provisions of this Agreement shall
remain unmodified and in full force and effect or limitation of its use.
30. 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.
21
31. No Assignment or Transfer.
Licensee shall not sell, assign this Agreement, or any part thereof to any other party.
The License granted by this Agreement is personal to the Licensee. Licensee cannot assig
sell or transfer its privilege of occupancy and use granted unto it by this Agreement. ny
assignment, sale or disposition of this Agreement by Licensee, whether volunt or
involuntary, contrary to the foregoing provision shall result in the automatic revocation, of this
Agreement without notice by the City Manager.
32. 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 agree to allow access
by the City and the public to all documents subject to disclosure under applic ble law.
33. 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
i
will fully comply in all respects with the terms of said laws and any future amendments thereto.
Licensee covenants that no person or entity under its employ, presently exercising any
functions or responsibilities in connection with this Agreefent, 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.
34. 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
22
disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall
take affirmative steps to ensure nondiscrimination in employment of disabled persons.
35. Nondiscrimination.
In the performance of this Agreement or any extension thereof, Licensee and/or
authorized agents shall not discriminate in connection with its occupancy and use of the e
and improvements thereon, or against any employee or applicant for employment bec use of
race, ancestry, national origin, color, sex, religion, age, disability, familial status, marl status
or sexual orientation. Licensee and/or its authorized agents will insure that its em oyees are
fairly treated during employment without regard to their race, national origin, an stry, color,
sex, religion, age, disability, familial status, marital status or sexual orientatio . Such action
shall include, but not be limited to, the following: employment, upgradi , demotion or
transfer, recruitment or recruitment advertising, layoff or termination, rate; of pay or other
forms of compensation.
36. Amendments and Modifications.
1
No amendments or modifications to this Agreement shall be /binding on either party
unless approved by the City Commission and School Board (or authorized designee), approved
as to legal form and correctness by the City Attorney, provided in writing and signed by both
Parties.
37. 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.
38. Litigation; Venue.
The Parties shall resolve any dispute or civ 1 action through the Florida Governmental
Conflict Resolution Act.
23
39. Waiver of Jury Trial.
The Parties hereby knowingly, irrevocably, voluntarily and intentionally wwaive any
right either may have to a trial by jury in respect of any action, proceeding or 7tunterclaim
based on this Agreement, or arising out of, under or in connection with this Agrement or any
amendment or modification of this Agreement, or any other agreement e cuted by and
between the Parties in connection with this Agreement, or any course of c duct, course of
dealing, statements (whether verbal or written) or actions of any party here i . This waiver of
jury trial provision is a material inducement for the City and Licensee ente ing into the subject
transaction.
40. Waiver.
Any waiver by either party or any breach by either party o ° any one or more of the
covenants, conditions or provisions of this Agreement shall not be •onstrued to be a waiver of
any subsequent or other breach of the same or any covenant, c• dition or provision of this
Agreement, nor shall any failure on the part of the City to requ e or exact full and complete
compliance by Licensee with any of the covenants, conditions qr provisions of this Agreement
be construed as in any manner changing the terms hereof to prevent the City from enforcing in
full the provisions hereto, nor shall the terms of this Agree nt be changed or altered in any
manner whatsoever other than by written agreement of the ity and Licensee.
41. 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 o ' 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.
42. No Interpretation Against Draftsmen..
The Parties agree that no provision o 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
24
party for the convenience of both Parties, and the Parties covenant that this Agreement sh l"f not
be construed in favor of or against either of the Parties.
43. 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 f9her acts, deeds
and assurances as may be necessary to consummate the transactions contemplated hereby.
44. Third Party Beneficiary.
This Agreement is solely for the benefit of the Parties hereto a
entitled to claim or enforce any rights hereunder.
45. No Partnership.
Nothing contained herein shall make, or be construed o make any party a principal,
agent, partner or joint venture of the other.
no third party shall be
46. Headings.
Title and paragraph headings are for convenie R reference and are not a part of this
Agreement.
47. 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.
48. Execution requirement.
Licensee shall execute this Agreement no later than thirty (30) calendar days following
City Commission approval. Licensee's failure to execute the Agreement within this time frame
shall result in an automatic revocation of the City Commission's approval.
25
49. Bond compliance.
The Parties acknowledge that, if applicable, the Parties shall comply with any d all
bond obligations and restrictions, including but not limited to, H meland
Defense/Neighborhood Improvements Improvement Bonds, Sunshine State Loa Pool and
Internal Revenue Service conditions.
50. Entire Agreement.
This Agreement and its attachments constitute the sole and only agreement of the
Parties hereto and correctly set forth the rights, duties and obligations of e ch to the other as of
its date. Any prior agreements, promises, negotiations or representation not expressly set forth
in this Agreement are of no force or effect. ,�
51. Authority of Superintendent.
For purposes of this Agreement, the Superintendent of Schools or his/her designee shall
be the party designated by the Licensee to grant or deny any and all approvals required under
this Agreement, including, without limitation, reviewing and approving all matters relating to
the Licensee's construction of improvements on the Property or Area, if any, or any approvals
required by this Agreement for the renewal, extension,/cancellation and/or termination of this
Agreement as provided herein, or temporary use by Licensee of other areas within the Property.
52. Damage and Destruction
The Parties agree that in the event o cancellation of the Agreement due to damage or
destruction, the Licensee shall surrender the Area to the City in compliance with this Agreement.
Any damage or destruction sustained to the Area or Property as a result of Licensee's actions
shall be repaired by the Licensee, at the Licensee's expense.
THIS SPACE LEFT BLANK INTENTIONALLY
26
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement of the day and
year first above written.
ATTEST:
CITY OF MIAMI, a municipal col tion
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 F RM AND
REQUIREMENTS:
CORRECTNESS:
By: By:
Calvin Ellis, Director
Department of Risk Management
Julie O. B u
City Att ney
ATTEST: LICENSEE:
WITNESSES: THE SCHdOL BOARD OF MIAMI-DADE
COUNT , FLORIDA, a body corporate and
politic - isting
under e laws of the State of Florida
By: By:
Signature
Corporate Secretary
27
Alberto M. Carvalho, Superintendent
of Schools
Print Name
Date
TO LICENSEE: APPROVED AS TO
FORM AND LEGAL SUFFICIENCY:
School Board Attorney
28
EXHIBIT A
AREA(S)
29
EXHIBIT B
PROPERTY
FOLIO #
DESCRIPTION
30
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EXHIBIT C
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