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HomeMy WebLinkAboutExhibit 1REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO BEASLEY-REED ACQUISITION PARTNERSHIP, LLC FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT 3965 RICKENBACKER CAUSEWAY MIAMI, FLORIDA \iNk 3- ?r5.1_ i TABLE OF CONTENTS 1. Recitals. 2 2. Definitions 3 3. Permitted Use(s). 4 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. Late Fee 6 10. Returned Check Fee. 6 11. Guaranty Deposit. 7 12. Condition of the Property and Maintenance. 8 13. Services and Utilities. 8 14. Performance of Improvements, Alterations, Additions, Replacements 10 16. City Access to Property. 12 17. No Liability. 13 18. Additional Expenses. 14 19. . Indemnification and Hold Harmless. 14 20. Insurance. 15 21. Safety. 15 22. Taxes and Fees 15 23. Revocation By Request Of Either Of The Parties Without Cause 16 24. Automatic Revocation By City Manager For Cause. 16 25. Notices. 16 26. Advertising 17 27. Hazardous Materials. 18 28. Radon Gas. 19 29. Licenses, Authorizations and Permits 19 30. Compliance with all Applicable Laws. 19 31. Surrender of Property 20 32. Termination of Prior Agreements. 20 33. Severability. 21 34. Invalidity. 21 35. No Assignment or Transfer 21 36. Public Records. 22 37. Conflict of Interest. 22 38. Americans with Disabilities Act. 22 39. Nondiscrimination 22 40. Amendments and Modifications. 23 41. Attorney(s') Fees. 23 42. Litigation; Venue. 23 43. Waiver of Jury Trial 23 44. Waiver 24 45. Time of Essence. 24 46. No Interpretation Against Draftsmen 24 47. Further Acts. 24 48. Third Party Beneficiary 25 49. No Partnership. 25 50. Headings. 25 51. Authority. 25 52. Execution requirement. 25 53. Bond compliance. 25 54. Entire Agreement. 26 55. Authority of Superintendent 26 56. Damage and Destruction. 26 EXHIBITS Exhibit A Property Exhibit B Insurance Requirements ii REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is entered this day of , 2013, by and between the City of Miami, a municipal corporation of the State of Florida ("City"), and Beasley -Reed Acquisition Partnership, LLC, a Delaware general partnership incorporated under the laws of the State of Florida ("Licensee"), together the Parties ("Parties"). RECITALS WHEREAS, the City and Hernstadt Broadcasting Corp. ("Original Tenant") entered into a Lease Agreement dated September 3, 1982 ("Lease"), pursuant to which Original Tenant leased certain premises consisting of approximately two and two -tenths acres, located on Virginia Key, Miami -Dade County, Florida ("Property"); and WHEREAS, the Original Tenant assigned the Lease to Howard Broadcasting Corporation ("Successor Tenant"), pursuant to an Assignment of Lease dated October 17, 1986, which assignment the City approved by letter dated November 24, 1986; and WHEREAS, Successor Tenant assigned an undivided one-half (1/2) interest in the Lease to Sunshine -Wireless Company, Inc. pursuant to an Assignment of Lease dated August 31, 1987, which assignment the City approved on August 10, 1987; and WHEREAS, Sunshine Wireless Company assigned its undivided one-half interest in the Lease to Licensee which assignment the City approved by a Consent to Assignment and Assumption dated August 14, 1996; and WHEREAS, Successor Tenant assigned all of its remaining right, title and interest in and to the Lease to Licensee, which assignment the City approved pursuant to a Consent to Assignment and Assumption dated August 11, 2000; and WHEREAS, Section 29-B of the City's Charter, authorizes the City Commission to grant a lessee of city -owned property a one-time extension during the last five years of its lease, without the necessity for a referendum, for the purposes of funding additional capital improvements, for an extended term not to exceed 25% of the original tern or 10 years, whichever is less, and provided the lessee is not in default of its lease nor in arrearage of any monies due the City; and WHEREAS, on May 25, 2006, the City Commission, by 4/5ths vote, adopted Resolution 06-0332, authorizing the extension of the tenn of the Lease for an additional term of six years; and WHEREAS, the Lease, as amended, will expire on September 2, 2013; and WHEREAS, the City and Licensee desire to enter into this Agreement for the Licensee's continued use of the Property so the City continues to receive uninterrupted revenue and so the general public in the City will be able to benefit from this broadcasting facility; and WHEREAS, this Agreement is not assignable; and WHEREAS, this Agreement is revocable at -will by the City, 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 WHEREAS, the Parties jointly and voluntarily stipulate as to the accuracy of these recitals; 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 2. Definitions. 2.1 "City Manager" means the City Manager for the City. 2.2 "City -sponsored Event" means an event sponsored by the City on the Property. 2.3 "Director" means the Director of the Department of Public Facilities for the City. 2.4 "Effective Date" means September 3, 2013. 2.5 "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 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. 2.6 "Parties" means the City and the Licensee. 2.7 "Property" means the approximately two and two -tenths 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 "A" attached hereto and made a part hereof 2.8 "Special Event" means 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. 2.9 "Use Fee" means the monthly fee that Licensee shall pay to the City for the use of the Property. 3 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 Property detailed in Exhibit A, solely for the maintenance and operation of a broadcast tower and communications facility and no other business activities ("Permitted Uses"). In addition, Licensor expressly consents to authorize Licensee to contract with third parties who wish to utilize the broadcast tower and Property for Permitted Uses under the same terms of this Agreement and, subject to any such third party providing Licensor the same (i) insurance coverage required of Licensee and (ii) indemnification required of Licensee. The transmission of obscene or indecent programming from the Property is specifically prohibited. The Licensee shall request prior written consent from the City Manager to use the Property for any other use and Licensee shall not be authorized to use the 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 Property solely through designated areas and shall not use any areas not designated as proper entrance and exit points. The Licensee is strictly prohibited from operating and offering any water sports activities on the 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. 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 users. Licensee acknowledges and agrees to abide by the terms and obligations related to this 4 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 until the first to occur of the following: (i) revocation or termination of this Agreement by either Party upon written notification pursuant to Paragraph 23, or (ii) automatic termination of this Agreement subject to the notice provisions of Paragraph 24 herein. 6. Duty to Operate for Public Purpose. Licensee, at all times during Licensee's use of the Property, shall utilize the Property solely in furtherance of the Permitted Uses described in Paragraph 3 herein. 7. Interest Conferred by this Agreement. This Agreement confers no exclusive possession or tenancy of Property. The Licensee cannot exclude the City from the Property. Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Property solely for the limited purpose of operating a broadcast tower and communications facility, and for no other purpose. The Parties hereby agree that the provisions of this Agreement do not constitute a lease. The rights of Licensee hereunder are not those of a tenant, but are a mere personal privilege to do certain acts of a temporary character described herein on the Property and to use the Property, subject to the terns of this Agreement. The City retains dominion, possession and control of the Property. Therefore, no lease interest in the Property is conferred upon Licensee under the provisions hereof. Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of this Agreement or its use of the Property hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds by the 5 Licensee for improvements, construction, repairs, partitions, or alterations to the Property which the City may authorize. 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 Fifteen Thousand Nine Hundred Fifty-three and 52/100 Dollars ($15,953.52), 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, 6th 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. 9. Late Fee. In the event any installment of the monthly Use Fee is not received by City on or before the fifth day of the month, Licensee shall pay to City a late charge in an amount equal to three percent (3%) of the Use Fee. Such late fee shall constitute additional fees due and payable to City by Licensee upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 10. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee ("Returned Check Fee") based on the following schedule: 6 Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. The Returned Check Fee shall constitute additional fees due and payable, to City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 11. Guaranty Deposit. Simultaneously with the execution of this Agreement, the Licensee shall deposit with City a Guaranty Deposit in the amount of Fifteen Thousand Nine Hundred Fifty-three and 52/100 Dollars ($15,953.52) as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement or in connection with this Agreement. If the Licensee is in violation beyond any applicable notice or cure period, the City may use, apply or retain all or any part of the Guaranty Deposit for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum which City may expend or be required to expend as a result of Licensee's violation. Should the City use, apply or retain all or any part of the Guaranty, Licensee shall reimburse the amount used, applied or retained within fifteen (15) days of the City's application of the Guaranty Deposit. The use, application or retention of the Guaranty Deposit or any portion thereof by the City shall not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. 7 Provided Licensee is not in violation of this Agreement, the Guaranty Deposit or balance thereof, as the case may be, shall be returned to Licensee after the expiration date or upon any later date after which Licensee has vacated the Property in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Guaranty Deposit (or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect to the Guaranty Deposit. Licensee shall not be entitled to receive any interest on the Guaranty Deposit. 12. Condition of the Property and Maintenance. Licensee accepts the Property "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 Property. Licensee, at its sole cost, shall maintain the Property 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 Property required as a result of Licensee's use thereof. Licensee shall be responsible for the maintenance and condition of the Property 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. Notwithstanding the foregoing, Licensee shall not be responsible for any maintenance or repairs that are required as a result of the disposal of the dredge material from the Port of Miami tunnel project ("Tunnel Project.") Except as set forth above, Licensee agrees to make all changes necessary to the Property at Licensee's sole cost and expense in order to comply with all City, county, state and federal code requirements for Licensee's use or occupancy thereof. 13. Services and Utilities. 13.1 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 8 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 representatives, agents or patrons shall not use the City's telephone equipment or services. The City is not a guarantor or in any manner responsible for payment of Licensee's responsibilities as they are set forth in this Agreement. Licensee, at its sole cost and expense, shall provide cleaning and janitorial services and hire pest and termite control services for the Property, as needed, to insure that the Property will 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. 13.2 City's Responsibility. City, at its sole cost, shall pay for the following utilities: None. The City reserves the right to interrupt, curtail or suspend the provision of any utility service provided by it, including but not limited to, heating, ventilating and air conditioning systems and equipment serving the Property, to which Licensee may be entitled hereunder, when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the judgment of City desirable or necessary to be made or due to difficulty in obtaining supplies or labor or for any other cause beyond the reasonable control of the City. The work of such repairs, alterations or improvements shall be prosecuted with reasonable diligence. The 9 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. 14. Performance of Improvements, Alterations, Additions, Replacements. The City has title to all permanent improvements on the Property. Upon .the expiration or revocation of this Agreement, title to all permanent improvements constructed on the Property shall continue with the City and Licensee shall quietly and peaceably deliver the same to the City. All improvements, furnishings and equipment constructed or installed on the Property by the Licensee shall be personal property and the Licensee shall have legal title thereto during the tern of this Agreement. Title to all supplies, furnishings, inventories, removable fixtures and removable equipment including the radio tower and antenna system and other personal property shall remain vested with Licensee and it shall have the right to remove such items from the Property at its expense, unless it is then in violation hereunder. Should Licensee elect, it shall have the right to leave the radio tower and antenna system on the premises at the revocation or termination of this Agreement and said action shall be deemed to constitute a gift of same to the City. 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'sapproval, 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 responsible for applying and acquiring all necessary permits, including but not limited to, building permits. The Licensee shall be responsible for any and all costs associated with any 10 improvements, alterations, additions or replacements including, but not limited to, design, construction, installation, and permitting costs. 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. Upon the termination or revocation of this Agreement, the Licensee shall restore the Property to its original, or better, state. 15. Violations, Liens and Security Interests. The Licensee shall not suffer or peiiuit any tax, statutory, laborers, material person, or construction liens to be filed against the title to the Property, nor against any alteration by any reason, including but not limited to, by reason of work, labor, services, tax liabilities or materials supplied to the Licensee or anyone having a right to possession of the 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 filing of any construction liens against the Property. If any construction, tax or other lien shall at any time be filed against the Property, the Licensee shall cause it to be discharged of record within fifteen (15) days after the date the Licensee acquires knowledge of its filing. If the Licensee shall fail to discharge a construction or other lien within that period, then in addition to any other right or remedy available to the City, the City may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court of bonding or other acceptable form of security in lieu thereof. Additionally, the City may compel the prosecution of an action for the foreclosure of the construction lien by the lienor and pay the amount of the judgment, if any, in favor of the lienor 11 (with interest, costs and allowances), with the understanding that all amounts paid by the City shall constitute additional payments due and payable under this Agreement and shall be repaid to the City by the Licensee immediately upon rendition of any invoice or bill by the City. The Licensee shall not be required to pay or discharge any statutory, laborers, supplies, material person or construction lien so long as (i) the Licensee shall in good faith proceed to contest the lien by appropriate proceedings, (ii) the Licensee shall have given notice in writing to the City of its intention to contest the validity of the lien, and (iii) the Licensee shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred ten percent (110%) of the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection therewith. 16. City Access to Property. City and its authorized representative(s) shall have at all times access to the Property. City will maintain a complete set of keys to the 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 Property at any time to (a) inspect the Property, (b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, Licensee not having cured such matter within ten (10) days of such notice, (c) to assure Licensee's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, codes, rules and regulations, (d) to show the Property 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. The City, its 12 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. 17. 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 Property, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Property or any person whomsoever whether such damage or injury results from conditions arising upon the Property or upon other portions of the Property or from other sources, 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. Licensee further acknowledges that as lawful consideration for being granted the right to utilize and occupy the 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 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 perfonn its covenants under this Agreement. Notwithstanding the foregoing, Licensee shall not be responsible for any injury to or death of any person or damage to or destruction or loss of any property resulting from or in connection with the disposal of dredge material due to the Tunnel Project. 13 18. 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. 19. Indemnification and Hold Harmless. Licensee shall indemnify and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (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 obligations in 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 terms herein or the failure of the Licensee to conform to statutes, ordinances, codes, rules, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance .of this Agreement. Licensee expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Licensee, or any of its subcontractors, as provided above, for which the Licensee's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. The City agrees that Licensee shall not indemnify the City for loss, costs, penalties, fines, damages, claims, expenses or 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 the disposal of dredge material on the Property from the Tunnel Project. 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. 14 20. Insurance. Licensee, at its sole cost, shall obtain and maintain in full force and effect at all tunes throughout the period of this Agreement, the insurance as set forth in Exhibit "B" attached hereto and made apart hereof. 21. Safety. Licensee will allow. City inspectors, .agents. or .representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Licensee shall have no recourse against the City, its agents, or representatives from the occurrence, non- occurrence or result of such inspection(s). Upon issuance of a notice to proceed, the Licensee shall contact the Risk Management Department at (305) 416-1700 to schedule the inspection(s). 22. 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 Property 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. 15 23. Revocation By Request Of Either Of The Parties Without Cause. Either party may revoke this Agreement at any time without cause by giving not less than one hundred twenty (120) days written notice to the non -revoking party prior to the effective date of the revocation. This is a revocation for convenience clause and neither party shall have any recourse against the other party due to the exercise of such revocation provided; however, that Licensee must pay its fees due to the City under this Agreement through the effective date of such revocation. 24. Automatic Revocation By City Manager For Cause. Licensee agrees to abide by each and every tern 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 terns of Paragraph 31 herein. 25. 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. CITY OF MIAMI City of Miami Office of the City Manager 444 SW 2 Avenue, 10th Floor Miami, FL 33130 LICENSEE Caroline Beasley Beasley -Reed Acquisition Partnership, LLC 3303 Riviera Drive, Suite 200 Naples, Florida 34103 16 WITH COPIES TO Director City of Miami Department of Public Facilities 444 SW 2 Avenue, Suite 325 Miami, FL 33130 City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, FL 33130 26. 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, unless such signs are required by the Federal Aviation Administration, the Federal Communications Commission or other regulatory agencies. Licensee shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Licensee must further obtain approvals, permits, or other required approvals by whatever name called, from all goverunental 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 17 (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. 27. Hazardous Materials. The Licensee shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, 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 govermnental and regulatory approvals relating to the presence 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 govermnental requirements. The requirements of this Paragraph shall survive the revocation or expiration of this Agreement. The City represents that: 18 To the best of its knowledge there are no environmental violations, whether under federal, state, or local laws, existing on the Property; To the best of its knowledge there are no Hazardous Materials presently existing on the Property. The City acknowledges that there is an ongoing disposal of dredge material near the Property in which the disposal trucks routinely encroach on the Property in the process of dredge disposal. Licensee shall have no liability for an Hazardous Materials, contamination, or damage as a result of the disposal of dredge material from the Tunnel Project on or near the Property. 28. 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. 29. Licenses, Authorizations and Permits. Licensee shall obtain, or cause to be obtained, and maintain in full force and effect throughout the tern 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. 30. 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. 19 31. Surrender of Property. • In either event of termination or revocation of this Agreement, Licensee shall peacefully surrender the Property in good condition and repair together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Property by Licensee, ordinary wear and tear or damage caused by unrelated third parties excepted within one hundred twenty days (120) days after receipt of written notice from the City. Licensee shall promptly remove all its personal property, trade fixtures and equipment and Licensee shall repair any damage to the Property caused by Licensee. Should Licensee fail to repair such damage to the Property within one hundred twenty (120) days after receipt of written notice from City directing the required repairs, City may cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full reasonable cost of such repairs within 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 Property so that the Property shall be as it was on the Effective Date of this Agreement, ordinary wear and tear or damage caused by unrelated third parties excepted. 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. 32. Termination of Prior Agreements. Licensee acknowledges the termination of the Lease Agreement, as amended, made and entered on September 3, 1982 between it and the City, and any and all other similar agreements with the City of Miami, Florida granting to Licensee any right of possession or occupancy of the Property. Licensee, for itself and its successors and assigns, hereby waives any notice of termination of such agreements that it would otherwise have been entitled to, whether in law or in equity. The provisions of this Section shall survive the termination of this Agreement. 20 33. Severability. It is the express intent of the Parties that this Agreement constitutes a license and not a lease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than a license, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. With regard to those provisions which do not affect the Parties intent for this Agreement, should any provision, section, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, section, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to 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. 34. Invalidity. In the event that any non -material provision of this Agreement shall be held to be invalid for any reason, such invalidity shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. 35. No Assignment or Transfer. Licensee 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 21 involuntary, contrary to the foregoing provision shall result in the automatic revocation of this Agreement without notice by the City Manager. 36. Public Records. Licensee understands that the public shall have access, at all reasonable times, to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. 37. Conflict of Interest. Licensee is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-1 1.1 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. 38. Americans with Disabilities Act. Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall take affinnative steps to ensure nondiscrimination in employment of disabled persons. 39. Nondiscrimination. In the performance of this Agreement or any extension thereof, Licensee and/or its authorized agents shall not discriminate in connection with its occupancy and use of the Area 22 and improvements thereon, or against any employee or applicant for employment because of race, ancestry, national origin, color, sex, religion, age, disability, familial status, marital status or sexual orientation. Licensee and/or its authorized agents will insure that its employees are fairly treated during employment without regard to their race, national origin, ancestry, color, sex, religion, age, disability, familial status, marital status or sexual orientation. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. 40. Amendments and Modifications. No amendments or modifications to this Agreement shall be binding on either party unless approved by the City Commission, approved as to legal form and correctness by the City Attorney, provided in writing and signed by both Parties. 41. Attorney(s') Fees. In the event it becomes necessary for either party to institute legal proceedings to enforce the provisions of this Agreement, each party shall bear its own attorneys' fees through all trial and appellate levels. 42. Litigation; Venue. The Parties shall resolve any dispute or civil action through the Florida Governmental Conflict Resolution Act. The venue shall be in Miami Dade, Florida. 43. 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 23 jury trial provision is a material inducement for the City and Licensee entering into the subject transaction. 44. 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 terns 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. 45. Time of Essence. It is expressly agreed by the Parties hereto that time is of the essence with respect to this Agreement. If the final day of any period falls on a weekend or legal holiday, then the final day of said period or the date of perfonnance shall be extended to the next business day thereafter. 46. No Interpretation Against Draftsmen. The Parties agree that no provision of this Agreement shall be construed against any particular party and each party shall be deemed to have drafted this Agreement. This Agreement is the result of negotiations between the Parties and has been typed/printed by one party for the convenience of both Parties, and the Parties covenant that this Agreement shall not be construed in favor of or against either of the Parties. 47. 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 24 deliver or cause to be performed, executed and/or delivered any and all such further acts, deeds and assurances as may be necessary to consummate the transactions contemplated hereby. 48. Third Party Beneficiary. This Agreement is solely for the benefit of the Parties hereto and no third party shall be entitled to claim or enforce any rights hereunder. 49. No Partnership. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner or joint venture of the other. 50. Headings. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 51. Authority. Each of the Parties hereto acknowledges it is duly authorized to enter into this Agreement and that the signatories below are duly authorized to execute this Agreement in their respective behalf. 52. 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. 53. 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. 25 54. 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. 55. 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. 56. 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. 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: Todd B. Hannon City Clerk Johnny Martinez, P.E. City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis, Director Department of Risk Management ATTEST: WITNESSES: Julie O. Bru City Attorney LICENSEE: By: By: Signature Signature Print Name Print Name Corporate Secretary Date 27 EXHIBIT A PROPERTY 28 EXHIBIT B INSURANCE REQUIREMENTS Commercial General Liability Limits of Liability Bodily Injury and Property Damage Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising. Injury Damage to Rented Premises Liability Endorsements Required City of Miami listed as an additional insured Premises and Operations Liability Contingent and Contractual Exposures Primary Insurance Clause $1,000,000 $2,000,000 $1,000,000 $1,000,000 $ 100,000 Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Scheduled, Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 Endorsements Required City of Miami included as an Additional Insured Worker's Compensation Limits of Liability Statutory -State of Florida Employer's Liability Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit Business Personal Property (If applicable) A. Causes of Loss: Special Form B. Valuation: Replacement Cost C. Business Interruption including extra expense The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer 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. 30