HomeMy WebLinkAboutExhibit A (Version 2)EXHIBIT "A"
CONCEPTUAL LANDSCAPING PLAN
Lt
ZIG El 21OHSVS
fi
11
Y
11
If
11
•INI
OASIS BY THE BAY -TAM( BIUSTER
1
SITE LANDSCAPE CONCEPT PLAN
IMPROVEMENTS
Planting & Installation of the following trees, palms and shrubs at 7890 N. Bayshore Court &
7889 N. Bayshore Drive, Miami according to the Landscape Plan in B2:
10 Shady Lady Plants
15 Green Butterwoods
4 Cuban Royal Palms
12 Cabbage Palms
8 Yellow Tabebuias
120 Coco plums
REVOCABLE LICENSE
ISSUED BY THE
CITY OF MIAMI
TO
UPPER EAST SIDE MIAMI, LLC
FOR THE OCCUPANCY OF PROPERTY LOCATED AT
7890 NE BAYSHORE COURT &
7889 N. BAYSHORE DRIVE
MIAMI, FLORIDA
TABLE OF CONTENTS
1. Purpose. 5
2. Occupancy and Use Period. 5
3. Interest Conferred By This License. 6
4. Consideration. 6
5.. Utilities. 7
6. Condition of the Property. 7
7. Alterations, Additions or Replacements. 7
8. Violations, Liens and Security Interests. 8
9. City Access to Facility. 9
10. Indemnification and Hold Harmless. 9
11. Hazardous Materials. 10
12. Payment and Performance Bond. 11
13. Insurance. 11
14. No Liability. 13
15. Taxes and Fees. 13
16. Cancellation By Request of Either of the Parties Without Cause. 14
17. Termination By City Manager For Cause. 14
18. Notices. 14
19. Advertising. 15
20. Ownership of Improvements. 16
21. Surrender of Property. 0 16
22. DefauIt by Licensee. 17
23. Severability. 17
24. No Assignment or Transfer. 17
25. Nondiscrimination. 18
26. Third Party Beneficiary 18
27. Waiver of Jury Trial. 18
ii
28. Non -waiver of Violation. 18
29. Amendments and Modifications. 18
30. Compliance with All Applicable Laws. 19
31. Captions. 19
32. Interpretation. 19
33. Entire License. 19
EXHIBITS
Exhibit "A": The Property - Legal Description & Sketch 22
Exhibit "BI": Improvements 25
Exhibit "B2" Landscaping Plan 26
Exhibit "C": Conditions of Use for Occupancy 27
Exhibit "D": List of Equipment/Materials to be stored on Property 28
Exhibit "E": Payment and Performance Bond 29
Exhibit "F": Insurance Requirements 33
REVOCABLE LICENSE
This Revocable License ("License") is made this day of , 2013
by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of
Florida ("City") and Upper East Side Miami, LLC, a Florida Limited Liability Company
("Licensee") whose principal address is 1400 NW 107th Avenue, 5th Floor, Sweetwater, FL,
33172.
RECITALS
WHEREAS, the City is the owner of a tract of uplands located at 7890 Northeast
Bayshore Court and 7889 North Bayshore Drive, Miami, Florida ("Property"); and
WHEREAS, the Property was transferred to the City by Licensee by City of Miami
Resolution No. for public purpose use as a passive park; and
WHEREAS, pursuant to MUSP approval by Resolution No 06-0128, in consideration of
this aforesaid property transfer, the City shall permit the Licensee to temporarily use the Property
as a construction staging and materials storage site for their multi -family development project,
Oasis on the Bay Project; and
WHEREAS, this License is personal to the Licensee and is not assignable or otherwise
transferable; and
WHEREAS, this License is revocable -at -will by the City and without the consent of the
Licensee; and
WHEREAS, this License does not transfer an interest in real property including any
leasehold interest in real property owned by the City; and
WHEREAS, this License does not confer a right to use any real property for any general
or unspecified purposes; and
WHEREAS, this License does not convey or transfer any right to exclude the City from
any real property; and
WHEREAS, this License permits only certain, enumerated, specific, listed Permitted
Uses, and does not permit or allow anything further; and
4
WHEREAS, in order to carry out the intent as expressed herein and in consideration of
the mutual licenses subsequently contained, City and Licensee agree as follows:
1. Purpose.
The City is the owner of real property and improvements thereon located at 7890
Northeast Bayshore Court and 7889 North Bayshore Drive, Miami, Florida ("Property"). The
City has determined that this 21,310 square foot property, 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 Property for construction staging, storage of non -contaminating
materials and equipment and subsequent design and installation of park improvements upon the
Property ("Permitted Uses").
The City is willing to assist the Licensee by temporarily authorizing the Licensee to
occupy and use the Property for the Permitted Uses, under the conditions hereinafter set forth.
Any use of the Property 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. References to the "City"
in this License which pertain to administrative decisions and notifications under this License
shall mean the City acting by and through its City Manager, unless different City Officials are
expressly referenced or named.
2. Occupancy and Use Period.
This License is effective as of , 2013 ("Effective Date") and shall continue
on a month to month basis with no'. fixed or stated term or duration and may be cancelled
(revoked) as follows:
(a) Cancellation or termination by the express written License of the parties hereto;
or
(b) Cancellation or termination ( synonymous with Revocation) by request of either
of the parties hereto, subject to the thirty (30) day notice provision of Paragraph
16, "Cancellation By Request of Either of The Parties Without Cause" at the end
of which time this License shall automatically end and will be of no further force
5
or effect. No additional action or notification by either party is needed to end the
License as provided in this subsection ; or
(c) Cancellation pursuant to Paragraph 17, "Termination by City Manager for
Cause", subject to the ten (10) day notice provision of Paragraph 17 ; or
(d) Completion of the park landscaping and installation
(e) Once the License is cancelled, prior to vacating the property, Licensee will be
responsible for developing the Property into a passive park and for the
landscaping and related improvements as listed in Exhibit "B1" and "B2".
3. Interest Conferred By This License.
Licensee agrees that this License has been issued by the City to authorize Licensee to use
the Property solely for the limited purpose of the Permitted Use and no other purpose. The
parties hereby agree that the provisions of this License do not constitute a lease and the rights of
Licensee hereunder are not those of a tenant butarea mere personal privilege to do certain acts
of a temporary character and to otherwise use the Property subject to the terms of this License.
No leasehold or tenancy interest in the Property is conferred upon Licensee under the provisions
hereof and Licensee does not and shall not claim at any time any leasehold estate or any real
estate ownership or similar interest in the Property by virtue of this License or its use of the
Property hereunder. Additionally, Licensee does not and shall not claim at any time any interest
or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds
by the Licensee for improvements, construction, repairs, partitions, or alterations to the Property
even if such improvements, construction, repairs, partitions, or alterations are authorized by the
City.
4. Consideration.
In consideration of this License, commencing on the Effective Date, Licensee agrees to
pay One Dollar and Zero Cents ($1.00) inconsideration for in -kind donation of the Property to
the City and proposed landscaping improvements by Licensee pursuant to MUSP Order
approved by City Resolution No. 06-0128. Pursuant to the aforesaid conditions in the MUSP
Order approved by City of Miami Resolution # R-06-0128, which Order and Resolution are
6
deemed as being incorporated by reference herein. Licensee agrees to pay for the design,
installation and development of the park and all improvements outlined in Exhibits "B 1" and
"B2" attached hereto and incorporated herein by reference.
5. Utilities.
Licensee shall pay for all utilities and services, including but not limited to, electricity,
water, storm water fees, gas, telephone, telecommunications, computer, garbage and sewage
disposal, used by Licensee during its occupancy of the Property, as well as all costs for
installation of any necessary cables, hook ups, lines and equipment. Licensee, at its sole cost,
shall install all utilities required for its use, install separate utility meters, and shall be billed
directly by the applicable utility company for such services. In the event that the City is billed
for any 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.
6. Condition of the Property.
Licensee accepts the Property "As Is", in its present condition and state of repair and
without any express or implied representation by or on behalf of the City, and agrees that the
City shall, under no circumstance, beliable for any latent, patent or other defects in the Property.
Licensee, at its sole cost, shall maintain the Property 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 Property required or caused by Licensee's use
of any part thereof.
Licensee agrees to make all changes necessary to the Property at Licensee's sole cost and
expense in order to comply with all City, County, State and Federal requirements for Licensee's
use or occupancy thereof. Additionally, Licensee agrees to maintain the Property at its own cost
and expense in accordance and in compliance with the terms and conditions specified in Exhibit
"C" attached hereto and made a part hereof. Moreover, Licensee agrees not to store the materials
and equipment and materials identified in Exhibit "D" attached hereto and made a part hereof
under terms and conditions inconsistent with this License.
7
7. Alterations, Additions or Replacements.
Except in the event of an emergency and in the case of the conditions and requirements
specified in Exhibit "C" 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 or
license by the City that the plans and specifications are structurally sufficient or 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.
8. 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 Property 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.
Licensee further agrees to defend, save, indemnify and 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
8
has contracted or otherwise is found liable, in respect to the Property. Nothing contained in this
License shall be deemed, construed or interpreted to imply any consent or license 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
Property or any of the improvements thereon. All contracts, subcontracts, purchase orders, or
other licenses involving the Property shall provide for the waiver of any lien rights in the
Property and provide that the contracting party agrees to be bound by such provision and include
the waiver provision in any sub license.
9. City Access to Facility.
The City and its authorized representative(s) shall at all times have access to the Property.
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, 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 License and all applicable laws, ordinances, rules and regulations, (d) to show the
Property, to prospective users, 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 purposes;
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 License.
10. Indemnification and Hold Harmless. The Licensee shall save, indemnify, hold
harmless and defend the City , its officials and employees, 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 Property, by reason of or as a result of Licensee's
9
use or operations thereon, and from and against any violations of laws, rules, regulations ,or
other governmental approvals or permits, 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.
11. 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, 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 Property required for the Licensee's use, or storage of, any Hazardous
Materials in or about the Property in conformity with all applicable Hazardous Materials Laws
and prudent industry practices regarding management of -such Hazardous Materials. Upon
termination or expiration of this License, the Licensee shall, at its sole cost and expense, cause
all Hazardous Materials, including their storage devices, placed in or about the Property by the
Licensee or at the Licensee's direction, to be removed from the Property and transported for use,
storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws.
The City acknowledges that it is not the intent of this Article to prohibit the Licensee from
operating in the Property for the uses described in the Section of this License 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,
10
all applicable governmental requirements. The requirements of this Section of the License shall
survive the expiration or termination of this License.
12. 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 "E" hereto and made a part hereof. The City shall be furnished with a copy
of the same and mailed to the City of Miami, Department of Public Facilities, 444 SW 2nd
Avenue, 3`d 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 Licensee's development project has been completed.
13. Insurance.
Prior to Licensee, its agents, employees, representatives, contractors, sub -contractors,
consultants or anyone else directly or indirectly employed by any of them entering upon the
Property for the purpose of performing the Permitted Uses as defined herein, the Licensee shall
obtain and maintain or cause to be obtained and maintained throughout the Occupancy and Use
Period, the types and amounts of insurance 'coverages set forth in Exhibit"F," attached hereto
and made a part hereof, in such reasonable amounts as approved by the City's Risk Management
Director protecting the City, against all claims for personal injury, bodily injury, property
damage, and regulatory actions by governmental agencies arising out of or related to the
activities undertaken by the Licensee upon the Property and naming the City as an additional
insured. All policies and/or certificates of insurance are subject to review and verification by
the City's Risk Management Department prior to insurance approval. The City's Risk
Management Department reserves the right to make reasonable changes in the types and amounts
of insurance coverages as necessary and shall revise Exhibit "F" accordingly as necessary.
11
The Licensee shall be responsible for assuring that the insurance certificates required
under this License remain in full force and effect for the duration of this License, including any
extensions hereof. If insurance certificates are scheduled to expire during the term of this
License and any extension hereof, Licensee shall be responsible for submitting new or renewed
insurance certificates to the City's Risk Management Administrator at a minimum of ten (10)
calendar days in advance of such expiration(s). 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 License 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 License for cause and seek
appropriate remedies in conjunction with the violation of the terms and conditions
of this License.
Compliance with the foregoing insurance requirements shall not relieve Licensee of its
liabilities and obligations under this License.
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, unless this requirement is waived in writing by the City Manager:
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 License
as provided in Section 17 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)
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.. In no event shall the City be liable for damage caused to
12
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.
14. No Liability.
In no event shall the City be liable or responsible for injury, loss or damage to the
property, improvements, fixtures and/or equipment belonging to or rented by Licensee, its
officers, agents, employees, invitees or patrons occurring in or about the Property that may be
stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam,
electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of
the Property, or from the breakage, leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or
from hurricane or any act of God or any act of negligence of any user of the facilities or
occupants of the Property or any person whomsoever whether such damage or injury results
from conditions arising upon the Property or from other sources. Licensee indemnifies the City
its officers, agents and employees from and against any and all such claims even if the claims,
costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged
negligence of the City, including any of its employees, agents, or officials.
Licensee further acknowledges that as lawful consideration for being granted the right
to utilize and occupy the Property, Licensee, on behalf of himself, his agents, invitees and
employees, does hereby release from any legal liability the City, its officers, agents and
employees, from any and all claims for injury, death or property damage resulting from -
Licensee's use of the Property.
15. Taxes and Fees.
Licensee shall pay before any fine, penalty, interest or cost is added for nonpayment, any
and all charges, fees, taxes, impositions, surcharges, fines, levies, assessments or assessments
levied against the Property, or against any occupancy interest or personal property of any kind,
owned by or placed in, upon or about the Property by Licensee, including, but not limited to,
occupational license fees, ad valorem taxes, sales and use taxes, fire fees, and parking
13
surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify City of
its intention to appeal said tax , imposition , 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.
16. Cancellation By Request of Either .of the Parties Without Cause.
Either party may cancel this License at any time, without cause, ,as no reason for
cancellation is required, by giving thirty (30) calendar days written notice to the non -canceling
party prior to the effective date of the cancellation ("Notice Period"). And at the end of such
Notice Period this License shall be automatically canceled without the need for further action by
the City.
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.
17. Termination 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 License, then, and in such event, by giving 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
within said ten (10) day period, this License shall be automatically canceled without the need for
further action by the City.
18. Notices.
All notices or other communications which may be given pursuant to this License shall
be in writing and shall be deemed properly served if delivered by personal service or by certified
mail addressed to City and Licensee at the address indicated herein or as the same may be
changed from time to time. Such notice shall be deemed given on the day on which personally
14
served; or if by certified mail, on the fifth
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
day after being posted or the date of actual receipt,
LICENSEE
Upper East Side Miami, LLC
1400 NW 107th Avenue, 5th Floor,
Sweetwater, FL., 33172
Attn. Seth Greenberg, Mgr.
WITH A COPY TO
Attn. Seth Greenberg,. Mgr.
2700 Delk Rd., Suite 100
Marietta GA. 30067
19. Advertising.
Licensee shall not permit any signs, decoration, or advertising matter to be placed either
in the interior or upon the exterior of the Property without having first obtained the approval of
the Director of Public Facilities ("Director") or his/her designee, which approval may be
withheld for any or no reason, at his sole discretion. Any City approved signage must comply
with all applicable Sign Codes & Regulations. 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 approval from
all governmental authorities having jurisdiction, and must comply with all applicable
requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation
of this License, Licensee shall, at its sole cost and expense, remove any sign, decoration,
advertising matter or other thing permitted hereunder from the Property. If any part of the
Property is in any way damaged by the removal of such items, said damage shall be repaired by
Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the
Property within ten (10) days after receipt of written notice from City directing the required
repairs, City shall cause the Property to be repaired at the sole cost and expense of Licensee.
Licensee shall pay City the full cost of such repairs within five (5) days of receipt of an invoice
indicating the cost of such required repairs.
15
Licensee hereby understands and agrees that the City may, at its sole discretion, erect or
place upon the Property an appropriate sign indicating City's having issued this License.
20. Ownership of Improvements.
As of the Effective Date and throughout the Occupancy and Use Period, title to the
Property and all improvements thereon shall be vested in City. Furthermore, title to all
Alterations made in or to the Property, whether or not by or at the expense of Licensee, shall,
unless otherwise provided by written license, immediately upon their completion become the
property of the City and shall remain and be surrendered with the Property.
21. Surrender of Property.
In event of cancellation pursuant to Paragraph 16, "Cancellation By Request of Either of
The Parties Without Cause," or Paragraph 17, "Teiniination By City Manager For Cause," at the
expiration of the Notice Period, Licensee shall peacefully surrender the Property 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 Property. Upon surrender,
Licensee shall promptly remove all its personal property, trade fixtures and equipment and
Licensee shall repair any damage to the Property caused thereby. Should Licensee fail to repair
any damage caused to the Property within ten (10) days after receipt of written notice from City
directing the required repairs, City shall cause the Property to be repaired at the sole cost and
expense of Licensee. Licensee shall pay 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, City may require Licensee, at Licensee's sole cost and expense, to restore the Property to
a condition acceptable to the City.
In the event Licensee fails to remove its personal property, equipment and fixtures from
the Property within the time limit set by the notice, said property shall be deemed abandoned and
thereupon shall become the sole personal property of the City. The City, at its sole discretion
and without liability, may remove and/or dispose of same as City sees fit, all at Licensee's sole
cost and expense.
16.
22. Default by Licensee. In the event Licensee is in default of the terms of this License the
City shall have all remedies available to it at law or in equity. In the event that Licensee fails to
peacefully surrender the Property at the expiration of the Notice Period provided in Paragraph
16, "Cancellation By Request of Either of The Parties Without Cause," or as provided in
Paragraph 17, "Termination By City Manager For Cause," after delivery of a notice of
cancellation of the License by the City ("City Notice").
23. Severability.
Should any provisions, paragraphs, sentences, words or phrases contained in this License
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 License shall remain
unmodified and in full force and effect.
It is the express intent of the parties that this License constitutes a revocable license and
not a lease. To further this intent, the parties agree as follows: (i) if any provision of this
License, 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 License, 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 License shall not be affected thereby and shall continue to operate
and remain in full force and effect.
24. No Assignment or Transfer.
This License is personal to the Licensee. The License may not assign, pledge, or transfer
this License or any portion or part of any privilege of occupancy or use granted by this License.
17
25. 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 Property and
improvements thereon.
26. Third Party Beneficiary
Third Party Beneficiary. Contractor and the City agree that it is not intended that any
provision of this Agreement establishes a third party beneficiary giving or allowing any claim or
right of action whatsoever by any third party under this Agreement.
27. 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
License, or arising out of, under or in connection with this License or any amendment or
modification --of- this --License—or--any- other --license -executed- by —and- between- the--parties--in-
connection with this License, 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.
28. Non -waiver of Violation.
Any failure by the City at any time or from time to time to enforce and require the strict
keeping and performance of any of the terms or conditions of this License 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.
29. Amendments and Modifications.
No amendments or modifications to this License shall be binding on either party unless in
writing, signed by both parties and approved by the City Manager. The City Manager is further
18
authorized to make non -substantive amendments to such License, as needed, with terms
conditions more particularly set forth in the License, subject to City Attorney approval. and
30. CompIiance with All Applicable Laws.
The Licensee accepts this License and hereby acknowledges that Licensee's strict
compliance with all applicable federal, state and local laws, ordinances and regulations i
condition of this License, and the Licensee shall comply therewith as the s a
and as they may be amended hereafter. This License shall be governed by andreonstru inexi
accordance with the laws of the State of Florida regardless of any conflict of law or other rulesu
which would require the application of the laws of another jurisdiction
31. Captions.
Title and paragraph headings are for convenient reference and are not
License. a Part of this
32. Interpretation — _
This License is the result of :negotiations between the parties and has been
by one party for the convenience of both parties. Should the provisions of this License/printed
dequine
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 re aratio
P p n of this
License.
33. Entire License.
This instrument and its attachments constitute the sole and only license of the parties
hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date.
Any prior licenses, promises, negotiations or representations not expressly set forth in this
License are of no force or effect.
19
IN WITNESS WHEREOF, the parties hereto have executed this License of the day and
year first above written.
CITY OF MIAMI,
A FLORIDA MUNICIPAL CORPORATION
ATTEST: BY:
TODD B. HANNON
CITY CLERK CITY MANAGER
APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE
AND CORRECTNESS: REQUIREMENTS:
BY: BY:
VICTORIA MENDEZ CALVIN ELLIS, DIRECTOR
CITY ATTORNEY RISK MANAGEMENT
20
WITNESSES:
LICENSEE
UPPER EAST SIDE MIAMI, LLC,
a Florida Limited Liability Company.
By: By:
Signature Seth Greenberg, Mgr,
Print Name
By:
Signature
Print Name CORPORATE/
COMPANY SEAL
21
EXHIBIT "A"
PROPERTY -
LEGAL DESCRIPTION & SKETCH
PARCEL 5 (Grondin Parcel)
Folio No.: 01-3208-008-0520
Street Address: 7890 NE Bayshore Court
PARCEL 5 LEGAL DESCRIPTION
Lot 1 of Block 4 of "HAYNSWORTH VILLAGE", according to the Plat thereof, as recorded in
Plat Book 44, Page 54, less that portion of the South right-of-way of State Road No. 828 (N.E.
79Th Street),
Less a 10 foot Public Utility Easement (per City of Miami Atlas maps) being parallel to the
southerly property line of Lot 1, Block 4, being more particularly described as follows:
Begin at the southeast corner of said Lot 1, thence N 90°00'00" W along the south line of said
Lot 1, for a distance of 100.00 feet to the southwest corner of said Lot 1; thence N 00° 00'00" E
along the west line of said Lot 1 for a distance of 110.65 feet to a point. Said point being the
intersection of the west line of said Lot 1 and the south right-of-way of State Road 828, as per
Department of Transportation right-of-way map, Section 87080-2505, also known as N.E. 79th
Street; thence along the south right-of-way of State Road 828 on_a. bearing of S 70°19'28" E for
a distance of 81.49 feet; thence S 23°15'03" E for a distance of 58.93 feet to the point of
intersection with the West line of said Lot 1; thence along the West right-of-way of Northeast
Bayshore Court and along the East line of said Lot 1 on a bearing of S 00°00'00" E for a
distance of 29.05 feet to the POINT OF BEGINNING. Less the South 10 feet thereof.
Said lands lying in and being in Miami -Dade County, Florida.
22
AND
PARCEL 6 (Clear Channel Parcel — South Side of 79th Street — West Side)
Folio Number: 01-3208-008-0530
Street Address: 7889 N. Bayshore Drive, Miami, FL. 33030
PARCEL 6 LEGAL DESCRIPTION:
A portion of Lot 2, Block 4, of HAYNSWORTH VILLAGE, according to the Plat thereof, as
recorded in Plat Book 44, Page 54, of the Public Records of Miami -Dade County, Florida, being
more particularly described as follows:
Begin at the S.W. corner of said Lot 2, thence N 10°43'00" E along the West line of said Lot 2
for 19.09 feet; thence N 00°00'00" E along the West line of said Lot 2 for 92,63 feet to the point
of curve of a circular curve concave to the Southeast, having a radius of 25.00 feet and a central
angle of 98°54'56", thence Northeasterly along the arc of said curve for an arc distance of 43.16
feet to the point of tangency on the South right of way line of NE 79th Street as per the Florida
Department of Transportation right-of-way map, Section 87080-2505, thence S 70°19'26" E
along said South right of way line for 75.54 feet to the point of intersection with the East line of
said Lot 2, thence S 00°00'00" E along the East line of said Lot 2 for 110.65 feet to the
Southeast corner of said Lot 2 thence N 90°00'00" W along the south line of said Lot 2 for
103.55 feet to the point of beginning.
23
•
..s...� -�-- -
,i
atel•IMUS a.m. Ivan.*
EXHIBIT "Bl"
IMPROVEMENTS
Planting & Installation of the following trees, palms and shrubs at 7890 NE Bayshore Court &
7889 N. Bayshore Drive, Miami according to the Landscape Plan in B2:
10 Shady Lady Plants
15 Green Butterwoods
4 Cuban Royal Palms
12 Cabbage Palms
8 Yellow Tabebuias
120 Coco plums
25
EXHIBIT B2
CONCEPTUAL LANDSCAPING PLAN
OASIS BY THE BAY -PARK
SITE LANDSCAPE CDNCEPT PLAN
26
FUSTER
BUM ASSOMATCS. P.A.
M... �w•nro-w�i.iwu w.y
EXHIBIT "C"
CONDITIONS OF USE FOR OCCUPANCY
1. Licensee agrees to erect a green colored mesh fencing 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.
2. Licensee agrees to lay down a layer of curing blanket overground and under the
materials storage so as to prevent water seepage and contamination into the ground
soil of the Property.
3. Licensee shall conduct a Phase One Environmental Assessment and soil analysis of
the Property before use (or prior to their land donation of the Property to the City) and
shall conduct a Phase Two Enviromnental Assessment after use to determine if the
Licensee has left any contaminants on the Property. 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.
4. Licensee shall remove all materials, fencing, equipment and soil additions placed
and/or stored on the Property at the expiration of this License.
Licensee shall develop the Property into a passive park on behalf of the City of
Miami and install landscaping and related improvements on the Property pursuant to
the City of Miami Resolution # R-06-0128 dated February 23, 2006 prior to vacating
the Property.
27
EXHIBIT "D"
LIST OF EQUIPMENT/
MATERIALS TO BE STORED ON PROPERTY
3 Construction Trailers
Construction vehicles
Gravel materials for parking surface
EXHIBIT "E"
PAYMENT AND PERFORMANCE BOND
00710. FORM OF PERFORMANCE BOND (Page 1 of 3)
BY THIS BOND, We , as Principal,
hereinafter called CONTRACTOR, and , as Surety, are
bound to the City of Miami, Florida, as Obligee, hereinafter called CITY, in the amount of
Dollars ($ ) for the payment whereof
CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors
and assigns, jointly and severally.
WHEREAS, CONTRACTOR has by written license entered into a Contract,
Bid/Contract No.: , awarded the day of
20 , with CITY which Contract Documents are by reference incorporated herein and made a
part hereof, and specifically include provision for liquidated damages, and other damages
identified, and for the purposes of this Bond are hereafter referred to as the "Contract";
THE CONDITION OF THIS BOND is that if CONTRACTOR:
1. Performs the Contract between CONTRACTOR and CITY for construction of
, the Contract being made a
. part of this Bond by reference, at the times and in the manner prescribed in the Contract;
and
2. Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees including
appellate proceedings, that CITY sustains as a result of default by CONTRACTOR under
the Contract; and
3. Performs the guarantee of all work and materials furnished under the Contract for the
time specified in the Contract; then THIS BOND IS VOID, OTHERWISE IT REMAINS
IN FULL FORCE AND EFFECT.
Whenever CONTRACTOR shall be, and declared by CITY to be, in default under the
Contract, CITY having performed CITY obligations thereunder, the Surety may promptly
remedy the default, or shall promptly:
3.1 Complete the Project in accordance with the terms and conditions of the
Contract Documents; or
29
00710, FORM OF PERFORMANCE BOND (Page 2 of 3)
3.2, Obtain a bid or bids for completing the Project in accordance with the terms and
conditions of the Contract Documents, and upon determination by Surety of the
lowest responsible Bidder, or, if CITY elects, upon determination by CITY and
Surety jointly of the lowest responsible Bidder, arrange for a contract between
such Bidder and CITY, and make available as work progresses (even though
there should be a default or a succession of defaults under the Contract or
Contracts of completion arranged under this paragraph) sufficient funds to pay
the cost of completion less the balance of the Contract Price; but not exceeding,
including other costs and damages for which the Surety may be liable
hereunder, the amount set forth in the first paragraph hereof. The term "balance
of the Contract Price," as used in this paragraph, shall mean the total amount
payable by CITY to CONTRACTOR under the Contract and any amendments
thereto, less the amount properly paid by CITY to CONTRACTOR.
No right of action shall accrue on this bond to or for the use of any person or corporation
other than CITY named herein.
The Surety hereby waives notice of and agrees that any changes in or under the Contract
Documents and compliance or noncompliance with any formalities connected with the
Contract or the changes does not affect Surety's obligation under this Bond.
Signed and sealed this day of , 20
WITNESSES:
Secretary By:
(CORPORATE SEAL)
30
(Name of Corporation)
(Signature)
(Print Name and Title)
IN THE PRESENCE OF: INSURANCE COMPANY:
31
By:
Agent and Attorney -in -Fact
Address:
(Street)
(City/State/Zip Code)
Telephone No.:
00721. CERTIFICATE AS TO CORPORATE PRINCIPAL
I, , certify that I am the
Secretary of the corporation named as Principal in the foregoing Performance and
Payment Bond (Performance Bond and Payment Bond); that
, who signed the Bond(s) on behalf of the Principal, was
then of said corporation; that I know his/her signature; and his/her
signature thereto is genuine; and that said Bond(s) was (were) duly signed, sealed and
attested to on behalf of said corporation by authority of its governing body.
Secretary (on behalf of)
Corporation
STATE OF FLORIDA
) SS
COUNTY OF MIAMI-DADE
(SEAL)
Before me, a Notary Public duly commissioned, qualified and acting personally,
appeared to me well known, who being
by me first duly sworn upon oath says that he/she has been authorized to execute the
foregoing Performance and Payment Bond (Performance Bond and Payment Bond) on
behalf of CONTRACTOR named:therein in favor of CITY.
Subscribed and Sworn to before me this day of
, 20
My commission expires:
by
Notary Public, State of
Bonded
32
EXHIBIT "F"
INSURANCE REQUIREMENTS
I. 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
II. Business Automobile Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
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
$ 1,000,000
33
Employer's Liability
A. 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
IV. Umbrella Policy (Excess Follow Form)
A. Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $ ,2,000,000
Aggregate $ ,2,000,000
Excess over CGL, Auto and W/C
B. Endorsements Required
City of Miami included as an additional insured
V. Payment and Performance Bond
City of Miami listed as Obligee
VI. Installation Floater
$ TBD
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 $ TBA
B. Coverage Extensions: As provided by carrier
34
VII. Owner's & Contractor's Protective Liability
Each Occurrence $1,000,000
Policy Aggregate $1,000,000
City of Miami listed as named 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.
35
CORPORATE RESOLUTION AND
UPDATED CORPORATE STATUS OF LICENSEE
CORPORATE RESOLUTION
WHEREAS, Upper East Side Miami, LLC ("Licensee"), a Limited Liability Company
qualified to do business in Florida, desires to enter into an Access License (the "License") with
the City of Miami solely for the limited purposes of performing the Scope of Work, as described
in the License to which this Corporate Resolution is attached; and
WHEREAS, the Board of Directors of Licensee at a duly held corporate meeting has considered
the matter in accordance with the Articles and By -Laws of the corporation;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that as the
authorized signatory of the Licensee, Seth Greenberg, Mgr., is hereby authorized and instructed
to enter into the License, in the name and on behalf of this corporation, with the City of Miami
upon the terms and conditions contained in the proposed License to which this Corporate
Resolution is attached, to provide all necessary insurance, to undertake all necessary duties and
obligations under the License, and to provide and execute the corresponding Payment and
Performance Bond.
DATED this day of , 20 .
Chairperson of the Board of Directors
Print Name:
Corporate Secretary
Print Name: (Corporate Seal)
36