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HomeMy WebLinkAboutExhibit 1 (2013-05-23)REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO MIAMI-DADE COUNTY FOR THE OCCUPANCY OF PROPERTY LOCATED AT 3501 RICKENBACKER CAUSEWAY MIAMI, FLORIDA 33149 VAx Table of Contents 1. Recitals. 5 2. Definitions. 5 3. Purpose. 6 4. Occupancy and Use Period 76 5. Interest Conferred By This Agreement. 7 6. Fees. 8 7. Late Fee. 8 8. Returned Check Fee 8 9. Guaranty Deposit. 9 10. Adjustment to Use Fee, Security and any Applicable Use Taxes. 9 11. Services and Utilities. 910 12. Condition Of The Area and Maintenance 11 13. Alterations, Additions Or Replacements. 114-2 14. Violations, Liens And Security Interests. 12 15. City Access To Facility. 13 16. Indemnification And Hold Harmless 1344 17. Hazardous Materials. 1131-4 18. Payment And Performance Bond. 1415 19. Insurance 15 20. No Liability 16 21. Taxes and Fees 17 22. Cancellation By Request Of Either Of The Parties Without Cause. 1718 23. Revocation By City Manager For Cause. 1718 24. Notices. 18 25. Advertising. 1819 26. Ownership Of Improvements. 19 27. Surrender Of Area. 19 28. Default by Licensee. 20 29. Severability. 7024 30. No Transfer 21 31. Nondiscrimination. 21 32. Affirmative Action. 224- ii 33. Waiver Of Jury Trial 22 34. Non -waiver of Violation 22 35. Amendments And Modifications 22 36. Compliance with All Applicable Laws. T3aa 37. Captions. 23 38. Interpretation. 23 39. Entire Agreement 23 40. Special Events 23 EXHIBIT "A" AREA 7625 EXHIBIT "B" CONDITIONS OF USE FOR OCCUPANCY 2726 EXHIBIT "C" LIST OF EQUIPMENT/MATERIALS TO BE STORED ON PROPERTY 2827 EXHIBIT "D" PAYMENT AND PERFORMANCE BOND )92- EXHIBIT "E" INSURANCE REQUIREMENTS 3029 iii REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is made this day of , 2013 by and between the City of Miami, Florida, a municipal corporation of the State of Florida ("City") and Miami -Dade County, a Florida governmental entity ("Licensee"), together the Parties ("Parties"). RECITALS WHEREAS, the City is the owner of the property located at 3501 Rickenbacker Causeway ("Property"); and WHEREAS, Miami -Dade County ("Miami -Dade", "County" or "Licensee") is undertaking a rehabilitation project of Bridge No. 874541 (a/k/a West Bridge) and Bridge No. 874544 (a/k/a Bear Cut Bridge) on the Rickenbacker Causeway, ISD Project No. DB13- PWWM-01- ER ("Project"); and WHEREAS, Licensee anticipates the Project to take approximately thirteen (13) months; and, WHEREAS, Licensee is requesting permission to temporarily use approximately 75,000 square feet of vacant parking space at the Property for construction staging, materials storage, unloading and loading activities; and WHEREAS, Licensee wishes to use a portion of the Property for which the fee is governed by the City Code, more specifically Section 53-53(b)l.c-d; and WHEREAS, the City wishes to support and facilitate the construction of the Project; and WHEREAS, this Agreement is not assignable or transferable; 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 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 4 WHEREAS, this Agreement permits only certain, enumerated, specific, listed Permitted Use, and does not permit anything further; and WHEREAS, this Agreement is subject to the audit and inspection rights set forth in Sections 18-100, 18-101 and 18-102 of the Code of the City of Miami, Florida as amended ("Code"), which are deemed as being incorporated by reference ; and WHEREAS, the City and Licensee ( collectively "the Parties") desire to enter into a Revocable License Agreement; and WHEREAS, the Parties jointly and voluntarily stipulate as to the accuracy of these recitals; and NOW THEREFORE, in consideration of the mutual covenants set forth herein, the Parties hereby agree as follows: 1. Recitals. The foregoing recitals are hereby incorporated and made a part of this Agreement. 2. Definitions. 2.1 "Area(s)" shall mean the certain portions of the Property located at 3501 Rickenbacker Causeway, Miami, Florida, 33149, 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 the day this Agreement is executed by the Parties. 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 5 Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of 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 construction staging, materials storage, unloading and loading activities necessary for the Project. 2.9 "Property" shall mean the approximately City -owned real property and improvements located at 3501 Rickenbacker Causeway, Miami, Florida, 33149. 2.10 "Use Fee" is the monthly fee that Licensee shall pay to the City for the use of the Property, if applicable unless it is waived for a governmental agency or by the City Commission. 3. Purpose. The City is the owner of real property and improvements located at 3501 Rickenbacker Causeway, Miami, Florida 33149 ("Property"). The City has determined that approximately 75,000 square feet of vacant land within the Property ("Area"), as more particularly described in Exhibit "A" attached hereto and made a part hereof, is not needed at this time by the City. The Licensee wishes to use the Area for construction staging and materials storage, (excluding fill classified as commercial or hazardous materials) ("Permitted Uses"). The City is willing to assist the Licensee by temporarily authorizing the Licensee to occupy and use the Area for the Permitted Uses, under the conditions hereinafter set forth. Any use of the Area not authorized under the Permitted Uses must receive the prior written consent of the City Manager, which consent may be withheld or conditioned for any or no reason, including, but not limited to additional financial consideration. 6 4. 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 thirteen (13) months until the first to occur of the following: (a) Revocation or termination by request of either of the parties hereto, subject to the notice provisions of Paragraph 22, "Cancellation By Request Of Either Of The Parties Without Cause;" or (b) Revocation or • termination pursuant to. Paragraph 23, "Revocation by City Manager for Cause" or (c) Completion of Miami -Dade County ISD Project No. DB13-PWWM-01- ER ("Project"). If at the end of the term Licensee needs more time to complete the Project, it shall notify the City Manager of the continued need for use of the Area, no later than the end of the tenth (10th) month of occupancy. The City Manager, in his/her sole discretion, may extend this Agreement for an additional period of time, not to exceed six (6) months, under the same terms and conditions, provided Licensee is not in violation of this Agreement. 5. Interest Conferred By This Agreement. Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Area solely for the limited purpose of the Permitted Use and no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease and 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 and to otherwise use the Area subject to the terms of this Agreement. No leasehold interest in the Area is conferred upon Licensee under the provisions hereof and Licensee does not and shall not claim at any time any leasehold estate or ownership interest 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, 7 construction, repairs, partitions, or alterations to the Area even if such improvements, construction, repairs, partitions, or alterations are authorized by the City. 6. Fees. Use Fee. In consideration of this Agreement, commencing on the Effective Date, Licensee agrees to pay a use fee ("Monthly Use Fee") to the City, of Two Thousand Dollars ($2,000.00), plus State Use Tax, if applicable, for, each month, or any portion thereof, that Licensee uses or occupies the Area, which Monthly Use Fee shall be paid in advance and in full on the first day of each month, without notice or demand. Nothing in this paragraph shall be construed to grant Licensee the right to use or occupy the Area for a term greater than on a month -to -month basis. Payments shall be made payable to "City of Miami" and shall be mailed to Finance Department, Attn: Treasury/Receipts, 444 S.W. 2nd Avenue, 6th Floor, Miami, Florida 33130, or such other address as may be designated from time to time. In the event the Effective Date does not fall on the first day of the month, the Monthly Use Fee will be prorated on a daily basis for that month. 7. Late Fee. In the event City does not receive any installment of the Monthly Use Fee within five (5) days of the date in which it is due, Licensee shall pay to the City a late charge in an amount equal to five (5%) percent of the Monthly Use Fee. Such late fee shall constitute additional fees due and payable to the City by Licensee upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by the City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount, nor shall it prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 8. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to the City a returned check fee ("Returned Check Fee") based on the following schedule: Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 8 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. The Returned Check Fee shall constitute additional fees due and payable to the City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of the Returned Check Fee by the City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor shall it prevent the City from the pursuit of any remedy to which City may otherwise be entitled. 9. Guaranty Deposit. Lessee shall not be required to provide a guaranty deposit. 10. Adjustment to Use Fee, Security and any Applicable Use Taxes. None. 11. Services and Utilities. 11.1 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. 9 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 (lst) day of the month following the execution of this Agreement and thereafter on the first (1st) 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. 11.2 City's Responsibility. City, at its sole cost, shall pay for the following utilities: None. Any utilities required for the Project or the Permitted Uses shall be the responsibility of the Licensee. 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, 10 alterations or improvements shall be prosecuted with reasonable diligence. The City shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility service to Licensee or for any limitation of supply resulting from governmental orders or directives. Licensee shall not claim any damages by reason of the City's or other individual's interruption, curtailment or suspension of a utility service, nor shall the Revocable License or any of Licensee's obligations hereunder be affected or reduced thereby. 12. Condition of The Area 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 the City, and agrees that the City shall, under no circumstance, be liable for any latent, patent or other defects in the Area. Licensee, at its sole cost, shall maintain the Area in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. Licensee shall be responsible for all repairs to the Area required or caused by Licensee's use of any part thereof. 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 requirements for Licensee's use or occupancy thereof. Additionally, Licensee agrees to maintain the Area at its own cost and expense in accordance and in compliance with the terms and conditions specified in Exhibit `B" attached hereto and made a part hereof Moreover, Licensee agrees not to store the equipment and materials identified in Exhibit "C" attached hereto and made a part hereof under terms and conditions inconsistent with this Agreement. 13. Alterations, Additions or Replacements. Except in the event of an emergency and in the case of the conditions and requirements specified in Exhibit "B," Licensee shall not make any repair or alteration required or permitted to be performed by Licensee without first receiving the written approval of the City Manager, which approval may be conditioned or withheld for any or no reason. If the City approves such request, no repair or alteration shall be commenced until plans and specifications therefore shall have been submitted to and approved by the City Manager. Licensee acknowledges that any approval given by the City Manager pursuant to this Section shall not constitute an opinion, approval, or agreement by the City that the plans and specifications are structurally sufficient or 11 in compliance with any laws, codes or other applicable regulations. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify City of such work. 14. Violations, Liens and Security Interests. Licensee, at its sole expense and with due diligence and dispatch, shall secure the cancellation, discharge, or bond off, in the manner permitted by law, all notices of violations arising from, or otherwise in connected with, Licensee's improvements, use, occupancy, or operations in the Area which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors, subcontractors, and material -men for all work and labor done at Licensee's request. Should any lien, claim, or encumbrance be asserted or filed, Licensee shall bond against or discharge the same regardless of validity, within ten (10) calendar days of Licensee's receipt of notice of the filing of said lien, claim, or encumbrance. In the event Licensee fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim and Licensee shall pay the City upon demand any amounts paid out by City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. To the extent allowed by § 768.28, Fla. Stat. , Licensee further agrees to hold City harmless from and to indemnify the City against any and all claims, demands and expenses, including attorney's fees, of any contractor, subcontractor, material person, laborer or any other third person with whom Licensee has contracted or otherwise is found liable, in respect to the Area. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, material person or supplier against any part of the Area or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other agreements involving the Area shall provide for the waiver of any lien rights in the Area and provide that the contracting party agrees to be bound by such provision and include the waiver provision in any sub agreement. 12 15. City Access To Facility. The City and its authorized representative(s) shall at all times have access to the Area. 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, with Licensee not having cured such matter within ten (10) calendar days of such notice, (c) to assure Licensee's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules and regulations, (d) to show 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 purpose; provided, however, that City shall make a diligent effort to provide at least 24-hour's advanced notice and Licensee shall have the right to have one or more of its representatives or employees present during the time of any such entry. The City shall not be liable for any loss, cost or damage to the Licensee by reason of the City's exercise 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 the City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 16. Indemnification and Hold Harmless. To the extent allowed by § 768.28, Fla. Stat., the Licensee shall indemnify, hold harmless and defend the City from and against any and- all claims, suits, actions, damages or causes of action of whatever nature, for any personal injury, loss of life or damage to property sustained in or on the Area, by reason of or as a result of Licensee's use or operations thereon, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorney's fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof; even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents or officials. 17. 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, 13 orders, administrative actions and administrative orders ("Hazardous Materials Laws"), including, without limitation, any Hazardous Material 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, under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The Licensee shall, at its sole cost and expense, procure, maintain in effect, and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Area required for the Licensee's use, or storage of, any Hazardous Materials in or about the Area in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination 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 by the Licensee or at the Licensee's direction, to be removed from the Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this Article to prohibit the Licensee from operating in the Area for the uses described in the Section of this Agreement entitled "Purpose". 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 Section of the Agreement shall survive the expiration or termination of this Agreement. 18. Payment And Performance Bond. The City shall require the Licensee to procure a Public Construction Payment Bond ("Payment Bond"), a Public Construction Performance Bond ("Performance Bond") and a Guarantee Bond ("Guarantee Bond"). The Public Construction Payment and Construction Performance bonds may be combined into one bond affording both coverages. All bonds must be substantially in the form prescribed by §255.05, Fla. Stat., and must meet the City's standards attached as Exhibit "D" hereto and made a part hereof. The City shall be furnished with a copy 14 of the same and mailed to the City of Miami, Department of Public Facilities, 444 SW 2❑d Avenue, 3rd Floor, Miami, FL 33130, Attn: Director. The required bonding and insurance coverage shall be maintained in effect until such time as the construction of the Project has been completed. 19. Insurance. Licensee represents that it is self -insured in accordance and subject to the limitations as set forth in Section 768.28 of the Florida Statutes, and shall provide evidence of acceptable self- insurance under the laws of the State of Florida to the City's Department of Risk Management. Licensee represents that its self-insurance program covers actions to recover for injury or loss of property, personal injury or death caused by the negligent or wrongful acts or omission of its officers and employees. Licensee further represents that it shall self -insure against any and all damage or destruction to one or more of the subject Properties and any buildings thereon, by any casualty, including but not limited to fire, windstorm and hurricanes. At its option, the Licensee may procure general liability insurance covering its operations and related liability at the Property. If the Licensee procures general liability insurance, Licensee shall name the City as an additional insured and provide the below listed coverage. If the insurer imposes a charge to name the City as an additional insured, the Licensee shall bear such cost. Notwithstanding the above, Licensee shall require as well its construction contractors, subcontractors, and vendors for the Project that come onto the Property to furnish the Licensee and the City, evidence of the following insurance coverage in the types and amounts of insurance coverages set forth in Exhibit "E," attached hereto and made a part hereof, unless this requirement is waived in writing by the City Manager. Compliance with the foregoing insurance requirements shall not relieve Licensee of its liabilities and obligations under this Agreement. The Licensee's failure to require third parties to procure insurance shall in no way release the Licensee from its obligations and responsibilities as provided. Failure to require third parties to procure insurance required by this Section shall constitute a cause for default of this Agreement as provided in Section 27 herein. If it can be determined that any loss or part thereof, shall be the fault of a third party (i.e. a contractor or contractors, visitors to the building or any other person, persons or organizations) 15 except the City, then and in that event, the Licensee may take all necessary actions to cause such third party to pay such costs and the Licensee shall be responsible for the restoration of any and all losses incurred by the third party, subject to Section 25 herein. In no event shall the City be liable for damage caused to the Property or Properties by fire or other casualty. If no third party or parties shall be found liable or if found liable, but unable to pay damages, then the costs of such repairs shall be ascribed to the Licensee. In the event that expired certificates are not replaced with new or renewed certificates which cover the Occupancy and Use Period: (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Director; or (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek appropriate remedies in conjunction with the violation of the terms and conditions of this Agreement. 20. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or rented by Licensee, its officers, agents, employees, invitees or patrons occurring in or about the Area 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 Area, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Area, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Area or any person whomsoever whether such damage or injury results from conditions arising upon the Area or from other sources. To the extent allowed by § 768.28, Fla. Stat., Licensee indemnifies the City its officers, agents and employees from and against any and all such claims even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, or officials. 16 Licensee further acknowledges that as lawful consideration for being granted the right to utilize and occupy the Area, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Area. 21. Taxes and Fees. Licensee shall pay before any fine, penalty, interest or cost is added for nonpayment, any and all -charges, fees, taxes, imposition, levy, or assessments levied against the Area, or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Area by Licensee, including, but not limited to, ad valorem taxes, fire fees, and parking surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent of the contested tax together with all interest, costs and expenses, including reasonable attorneys' fees, expected to be incurred. 22. Cancellation By Request Of Either Of The Parties Without Cause. Either party may cancel this Agreement at any time by giving thirty (30) calendar days written notice to the non -canceling party prior to the effective date of the cancellation ("Notice Period"). Neither party shall have any recourse against the other for a cancellation effectuated pursuant to this Section, as it is understood and agreed that this cancellation is for convenience, without cause and without recourse. 23. Revocation By City Manager For Cause. If, at the sole and complete discretion of the City, Licensee in any manner violates the restrictions and conditions of this Agreement, then, and in such event, after ten (10) calendar days written notice given to Licensee by the City Manager within which to cease such violation or correct such deficiencies, and upon failure of Licensee to do so after such written notice 17 within said ten (10) day period, this Agreement shall be automatically canceled without the need for further action by the City. 24. Notices. Agreement pursuant to this Ag All notices or other communications which may givenbe service or by shall be in writing and shall be deemed properly served if delivered by personal certified mail addressed to City and Licensee at the address indicated herein or as the e same whiy ch e o be changed from time to time. Such notice shall be deemed given ono the dateyof actual personally served; or if by certified mail, on the fifth day after being posted receipt, whichever is earlier: CITY OF MIAMI City of Miami Office of the City Manager 444 SW 2 Avenue, 10th Floor Miami, Fl 33130 WITH A COPY TO City of Miami Department of Public Facilities 444 SW 2 Avenue, Suite 325 Miami, FL 33130 City of Miami City Attorney's Office 444 SW 2 Avenue, Suite 945 Miami, FL 33130 LICENSEE Miami -Dade County ATTN: Miami, Florida 33130 WITH A COPY TO 25. Advertising. Licensee shall not permit any signs, decoration, or advertising matter to be placed either written in the interior or upon the exterior of the Area without having first obtained the prior h approval oem " or his/her designee, approval of the Director of Public Facilities ("Direct discretion. Licensee shall, at its sole cost and may be withheld for any or no reason, at his sole advertising matter or other things as expense, install, provide, maintain such sign, decoration, rt may be p ermitted hereunder in good condition and repair at all times. Licensee must fu with all er Pp obtain approval from all governmental authorities having jurisdiction, and must comply 18 applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this Agreement, Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Area. If any part of the Area 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 within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Area an appropriate sign indicating City's having issued this Agreement. 26. Ownership of Improvements. As of the Effective Date and throughout the Occupancy and Use Period, title to the Area and all improvements thereon shall be vested in City. Furthermore, title to all Alterations made in or to the Area, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. 27. Surrender of Area. In event of cancellation pursuant to paragraph 22, "Cancellation By Request Of Either Of The Parties Without Cause," or paragraph 23, "Termination By City Manager For Cause," at the expiration of the Notice Period, Licensee shall peacefully surrender the Area broom clean and in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, Licensee shall promptly remove all its personal property, trade fixtures and equipment and Licensee shall repair any damage to the Area caused thereby. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay to the City the full cost of such repairs within five (5) calendar days of receipt of an invoice indicating the cost of such required repairs. At the City's option, 19 City may require Licensee, at Licensee's sole cost and expense, to restore the Area to a condition acceptable to the City. 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. 28. Default. by Licensee. In the event Licensee is in default of the terms of this Agreement the City shall have all remedies available to it at law or in equity. In the event that Licensee fails to peacefully surrender the Area at the expiration of the Notice Period provided in Paragraph 22, "Cancellation By Request Of Either Of The Parties Without Cause," or as provided in Paragraph 23, "Revocation By City Manager For Cause," after delivery of a notice of cancellation of the Agreement by the City ("City Notice"), then the City shall, in addition to all other remedies, be entitled to collect from the Licensee and Licensee shall pay to the City, a per diem fee of One Thousand and No/100 Dollars ($1,000.00) for each day that Licensee remains in the Area in violation of this Agreement ("Per diem Fee"). Acceptance of the Per diem Fee by the City shall, in no event, constitute a waiver of the City's rights under this Agreement and shall not prevent the. City from pursuing all other remedies to which the .City is entitled, including but not limited to, the right to seek injunctive relief to eject Licensee from the Area. 29. Severability. Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unlawful, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the City, and in such event, the remaining terms and conditions of this Agreement shall remain unmodified and in full force and effect. It is the express intent of the parties that this Agreement constitutes a revocable license and not a lease. To further this intent, the parties agree as follows: (i) if any provision of this 20 Agreement, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than a license, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. 30. Assignment. and Transfer. Licensor expressly acknowledges that Licensee may transfer this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement to any third -party so long as such third -party is using the Property solely for the authorized completion of the Project, at Licensee's express direction. However, any third -party that proposes to use the Property for completion of the Project will be required to fully indemnify Licensor and demonstrate the insurance coverage set forth in Exhibit "E". Any such third -party shall indemnify, hold harmless and defend the City from and against any and all claims, suits, actions, damages or causes of action of whatever nature, for any personal injury, loss of life or damage to property sustained in or on the Area, by reason of or as a result of Licensee's use or operations thereon, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorney's fees, expenses and liabilities incurred in .andabout the defense of any such claims and the investigation thereof; even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents or officials. Licensee shall require that any third -party using the Property acknowledge the receipt of a copy of this Agreement and compliance with this paragraph. 31. Nondiscrimination. Licensee shall not discriminate as to race, color, religion, sex, national origin, age, disability or marital status in connection with its occupancy and/or use of the Area and improvements thereon. 21 32. Affirmative Action. Licensee shall have in place an Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its achievement which will require that action be taken to provide equal opportunity in hiring and promoting for women, minorities, the disabled and veterans. Such plan will include a set of positive measures which will be taken to insure nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu of such a policy/plan, Licensee shall submit a Statement of Assurance indicating that their operation is in compliance with all relevant Civil Rights laws and regulations. 33. 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. 34. Non -waiver of Violation. Any failure by. the. Cityatany time or from time to time to enforce and require the strict keeping and performance of any of the terms or conditions of this Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City from insisting on the strict keeping and performance of such terms or conditions at any later time. No waiver of any right hereunder shall. be effective unless in writing and signed by the City. 35. Amendments and Modifications. No amendments or modifications to this Agreement shall be binding on either party unless in writing, signed by both parties and approved by the City Manager. The City Manager is further authorized to make non -substantive amendments to such Agreement, as needed, with terms and conditions more particularly set forth in the Agreement, subject to City Attorney approval. 22 36. Compliance with All Applicable Laws. The Licensee accepts this Agreement and hereby acknowledges that Licensee's strict compliance with all applicable federal, state and local laws, ordinances and regulations is a condition of this Agreement, and the Licensee shall comply therewith as the same presently exist and as they may be amended hereafter. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other rules which would require the application of the laws of another jurisdiction 37. Captions. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 38. Interpretation. This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 39. Entire Agreement. This instrument and its attachments constitute the sole and only agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior agreements, promises, negotiations or representations not expressly set forth in this Agreement are of no force or effect. 40. Special Events The Licensee acknowledges and agrees that from time to time the City may sponsor, allow, or otherwise facilitate Special, Seasonal, Sports, Entertainment, Recreational or similar 23 events (collectively "Special Events") to be produced at the Property. The Special Events shall not exceed a duration of fourteen (14) contiguous days. 24 IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. CITY OF MIAMI, A FLORIDA MUNICIPAL CORPORATION ATTEST BY: BY: Todd B. Hannon City Clerk Johnny Martinez, P.E. City Manager APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: BY: BY: Julie O. Bru City Attorney Calvin Ellis, Director Risk Management (OFFICIAL SEAL) Miami -Dade County, Florida ATTEST BY: By: County Clerk 25 EXHIBIT "A" AREA 26 EXHIBIT "B" CONDITIONS OF USE FOR OCCUPANCY 1. Licensee agrees its use of the Area 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 users. Licensee shall not be able to use the Area during the annual professional tennis tournament which Miami -Dade County hosts (currently known as the Sony Open Tennis Tournament.) 2. Licensee agrees to erect a.green colored meshfencing that is sufficiently opaque to block view into the use and conforming to the height measurements required by the City of Miami 21 Zoning Code. 3. Licensee agrees to install, at its own expense, a gate for ingress and egress to the Area from the access road. Licensee agrees to use this point for access to and from its Area. 4. Licensee agrees to lay down a layer of curing blanket over the materials storage area so as to prevent water seepage and contamination into the ground soil of the Area. 5. Licensee shall conduct a Phase Two Environmental Assessment and soil analysis of the Area before use and after use to determine if ,it has left any contaminants. If contamination is found to be left on the Property, Licensee shall at its sole cost and expense pay to clean up its contamination. Additionally, upon request from the City, Licensee shall conduct such soil analysis tests the City may require from time to time during the period of use of the Property. 6. License shall have maintained at all times a mobile water spray down and agrees to have its contractor hose spray all trucks' tires leaving the use area to minimize the amount of sand and debris leaving the use area. 7. Licensee shall remove all pipes, fencing, equipment and soil additions and restore area to the same or better condition than the Area was in before its use, except that the invasive trees do not have to be replaced. 8. Licensee shall resurface the access road leading to the City marina located on the property. The resurfacing and patch work of approximately 2,500 square feet along the corridor. 27 EXHIBIT "C" LIST OF EQUIPMENT/ MATERIALS TO BE STORED ON PROPERTY 28 EXHIBIT "D" PAYMENT AND PERFORMANCE BOND 29 EXHIBIT "E" INSURANCE REQUIREMENTS Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $ 1,000,000 Endorsements Required City of Miami included as an additional insured pursuant to Endorsement CG 2010 11/85 or equivalent version Premises & Operations Liability Contingent and Contractual Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement Coverage for Injury to leased workers II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Liff t Any Auto, Owned Autos, Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident Endorsements Required City of Miami included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H 30 $ 1,000,000 IV. Employer's Liability Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit V. Umbrella Policy (Excess Follow Form) Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 3,000,000 Aggregate $ 3,000,000 Excess over CGL, Auto and W/C Endorsements Required City of Miami included as an additional insured VI. Payment and Performance Bond $ TBD City of Miami listed as Obligee VII. Protection and Indemnity $1,000,000 VIII. Installation Floater (If Applicable) Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $5,000 All other Perils 5% maximum on Wind A. Limit/Value at Location or Site $ TBD B. Coverage Extensions: As provided by carrier IX. Contractor's Pollution $1,000,000 City of Miami listed as an additional insured The above policies shall provide the City of Miami with written notice of cancellation or material changes in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 31