HomeMy WebLinkAboutExhibit A 2013/10/24EXHIBIT "A"
CONCEPTUAL LANDSCAPING PLAN
1411
LiJ
rci
221011S AVE
1\1
OASIS BY THE BAY —PARK
slit, LANDSCAPE CONCEPT PLAN
7-C4 771 (3-3y54.
ijl
F
ff
it
3
FE
t
2
1
7
;-
FUSTER
aftwturr.,
e9.• WI .1 b., Wu.
111
iii
-€
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 AGREEMENT
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 Agreement. 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, 16
22. Default by Licensee. 16
23. Severability, 17
24. No Assignment or Transfer. 17
25. Nondiscrimination, 18
26. Affirmative Action. 18
27. Waiver of Jury Trial. 18
ii
28. Non -waiver of Violation. 18
29. Amendments and Modifications. 19
30. Compliance with All Applicable Laws. 19
31. Captions. 19
32. Interpretation. 19
33. Entire Agreement. 20
EXHIBITS
Exhibit "A": The Property - Legal Description & Sketch 22
Exhibit "Bl": 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 AGREEMENT
This Revocable License Agreement ("Agreement") is made this day of
, 2013 by and between the CITY OF MIAMI, FLORIDA, a municipal
corporation of the State of Florida ("City") and 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 Agreement is personal to the Licensee and is not assignable or
otherwise transferable; and
WHEREAS, this Agreement is revocable -at -will by the City and without the consent of
the Licensee; and
WHEREAS, this Agreement does not transfer an interest in real property including any
leasehold interest in real property owned by the City; and
WHEREAS, this Agreement does not confer a right to use any real property for any
general or unspecified purposes; and
WHEREAS, this Agreement does not convey or transfer any right to exclude the City
from any real property; and
WHEREAS, this Agreement permits only certain, enumerated, specific, listed Permitted
Use, and does not permit anything further; and
4
WHEREAS, in order to carry out the intent as expressed herein and in consideration of
the mutual agreements 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 Agreement which pertain to administrative decisions and notifications under this
Agreement shall mean the City acting by and through its City Manager, unless different City
Officials are named.
2. Occupancy and Use Period.
This Agreement is effective as of , 2013 ("Effective Date") and shall
expire on the earlier of:
(a) Thirty (30) months from the effective date; or
(b) Cancellation or termination by the express written agreement of the parties hereto;
or
(b) Cancellation or termination by request of either of the parties hereto, subject to
the notice provisions of Paragraph 16, "Cancellation By Request of Either of The
Parties Without Cause"; or
5
(c) Cancellation pursuant to Paragraph 17, "Termination by City Manager for
Cause"; or
(d) Completion of the park landscaping and installation.
3. Interest Conferred By This Agreement.
Licensee agrees that this Agreement 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 Agreement do not constitute a lease and the rights
of Licensee hereunder are not those of a tenant but are a mere personal privilege to do certain
acts of a temporary character and to otherwise use the Property subject to the terms of this
Agreement. 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 ownership interest 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
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.
4 (a) Consideration.
In consideration of this Agreement, commencing on the Effective Date, Licensee agrees
to pay One Dollar and Zero Cents ($1.00) in consideration 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, Licensee agrees to pay for the
design, installation and development of the park and all improvements outlined in Exhibits "BI"
and "B2" attached hereto and incorporated herein by reference.
6
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, 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 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 Agreement.
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
7
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
agreement 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
has contracted or otherwise is found liable, in respect to the Property, Nothing contained in this
Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the
part of City to subject the City's interest or estate to any liability under any mechanic's or other
lien asserted by any contractor, subcontractor, material person or supplier against any part of the
8
Property or any of the improvements thereon. All contracts, subcontracts, purchase orders, or
other agreements 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 agreement.
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 Agreement and all applicable laws, ordinances, 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 purpose; provided,
however, that City shall make a diligent effort to provide at least 24-hour's advanced notice and
Licensee shall have the right to have one or more of its representatives or employees present
during the time of any such entry. The City shall not be liable for any loss, cost or damage to the
Licensee by reason of the City's exercise of the right of entry described herein for the purposes
listed above. The making of periodic inspection or the failure to do so shall not operate to
impose upon the City any liability of any kind whatsoever nor relieve the Licensee of any
responsibility, obligations or liability assumed under this Agreement,
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 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
9
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 Agreement, 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 Agreement entitled
"Purpose". The Licensee may operate according to the custom of the industry so long as the use
or presence of Hazardous Materials is strictly and properly monitored according to, and in
compliance with, all applicable governmental requirements. The requirements of this Section of
the Agreement shall survive the expiration or termination of this Agreement.
10
12. Payment and Performance Bond.
The City shall require the Licensee to procure a Public Construction Payment Bond
("Payment Bond"), a Public Construction P.erforman.ce 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.
The Licensee shall be responsible for assuring that the insurance certificates required
under this Agreement remain in full force and effect for the duration of this Agreement,
including any extensions hereof. If insurance certificates are scheduled to expire during the term
11
of this Agreement 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 Agreement until such time as the new or renewed
certificate(s) are received in acceptable form by the City's Risk Management
Director; or
(ii) the City may, at its sole discretion, terminate the Agreement for cause and seek
appropriate remedies in conjunction with the violation of the terms and conditions
of this Agreement,
Compliance with the foregoing insurance requirements shall not relieve Licensee of its
liabilities and obligations under this Agreement.
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
Agreement as provided in Section 27 herein.
If it can be determined that any loss or part thereof, shall be the fault of a third party (i,e.
a contractor or contractors, visitors to the building or any other person, persons or organizations)
except the City, then and in that event, the Licensee may take all necessary actions to cause such
third party to pay such costs and the Licensee shall be responsible for the restoration of any and
all losses incurred by the third party, subject to Section 25 herein. In no event shall the City be
liable for damage caused to the Property or Properties by fire or other casualty. If no third party
or parties shall be found liable or if found liable, but unable to pay damages, then the costs of
such repairs shall be ascribed to the Licensee,
12
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, 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 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
13
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 attomeys' fees, expected to be
incurred.
16. Cancellation By Request of Either of the Parties Without Cause.
Either party may cancel this Agreement at any time by giving thirty (30) calendar days
written notice to the non -canceling party prior to the effective date of the cancellation ("Notice
Period"). Neither party shall have any recourse against the other for a cancellation effectuated
pursuant to this Section, as it is understood and agreed that this cancellation is for convenience,
without cause and without recourse.
17. Termination By City Manager For Cause.
lf, at the sole and complete discretion of the City, Licensee in any manner violates the
restrictions and conditions of this Agreement, then, and in such event, after ten (10) calendar
days written notice given to Licensee by the City Manager within which to cease such violation
or correct such deficiencies, and upon failure of Licensee to do so after such written notice
within said ten (10) day period, this Agreement 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 Agreement
shall be in writing and shall be deemed properly served if delivered by personal service or by
certified mail addressed to City and Licensee at the address indicated herein or as the same may
be changed from time to time. Such notice shall be deemed given on the day on which
personally served; or if by certified mail, on the fifth day after being posted or the date of actual
receipt, whichever is earlier:
14
CITY OF MIAMI
City of Miami
Office of the City Manager
444 SW 2 Avenue, 10`" Floor
Miami, FI 33130
WITH A COPY TO
City of Miami
Department of Public Facilities
444 SW 2 Avenue, Suite 325
Miami, FL 33130
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. 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 Agreement, 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.
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 Agreement.
15
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 agreement, 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, "Termination 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.
22. Default by Licensee.
In the event Licensee is in default of the terms of this Agreement the City shall have all
remedies available to it at law or in equity. In the event that Licensee fails to peacefully
16
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 Agreement by the City ("City Notice"),
23. Severability.
Should any provisions, paragraphs, sentences, words or phrases contained in this
Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise
unlawful, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to
the extent necessary in order to conform with such laws, and the same may be deemed severable
by the City, and in such event, the remaining terms and conditions of this Agreement shall
remain unmodified and in full force and effect.
It is the express intent of the parties that this Agreement constitutes a revocable license
and not a lease, To further this intent, the parties agree as follows: (i) if any provision of this
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.
24. No Assignment or Transfer.
This License is personal to the Licensee. The License may not assign or transfer this
Agreement or any portion or part of any privilege of occupancy or use granted by this
Agreement.
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. Affirmative Action.
Licensee shall have in place an Affirmative Action/Equal Employment Opportunity
Policy and shall institute a plan for its achievement which will require that action be taken to
provide equal opportunity in hiring and promoting for women, minorities, the disabled and
veterans. Such plan will include a set of positive measures which will be taken to insure
nondiscrimination in the work place as it relates to hiring, firing, training and promotion. In lieu
of such a policy/plan, Licensee shall submit a Statement of Assurance indicating that their
operation is in compliance with all relevant Civil Rights laws and regulations.
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 anyaction, proceeding or counterclaim based on this
Agreement, or arising out of, under or in connection with this Agreement or any amendment or
modification of this Agreement, or any other agreement executed by and between the parties in
connection with this Agreement, or any course of conduct, course of dealing, statements
(whether verbal or written) or actions of any party hereto, This waiver of jury trial provision is a
material inducement for the City and Licensee entering into the subject transaction.
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 Agreement shall not constitute
a waiver of any such terms or conditions at any future time and shall not prevent the City from
insisting on the strict keeping and performance of such terms or conditions at any later time, No
waiver of any right hereunder shall be effective unless in writing and signed by the City.
18
29. Amendments and Modifications.
No amendments or modifications to this Agreement shall be binding on either party
unless in writing, signed by both parties and approved by the City Manager. The City Manager is
further authorized to make non -substantive amendments to such Agreement, as needed, with
terms and conditions more particularly set forth in the Agreement, subject to City Attorney
approval.
30. Compliance with All Applicable Laws.
The Licensee accepts this Agreement and hereby acknowledges that Licensee's strict
compliance with all applicable federal, state and local laws, ordinances and regulations is a
condition of this Agreement, and the Licensee shall comply therewith as the same presently exist
and as they may be amended hereafter. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida regardless of any conflict of law or other rules
which would require the application of the laws of another jurisdiction
31. Captions.
Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
32. Interpretation.
This Agreement is the result of negotiations between the parties and has been
typed/printed by one party for the convenience of both parties. Should the provisions of this
Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body
interpreting or construing the same shall not apply the assumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction that an instrument
is to be construed more strictly against the party which itself or through its agents prepared same,
it being agreed that the agents of both parties have equally participated in the preparation of this
Agreement.
19
33. Entire Agreement.
This instrument and its attachments constitute the sole and only agreement of the parties
hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date.
Any prior agreements, promises, negotiations or representations not expressly set forth in this
Agreement are of no force or effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day
and year first above written.
CITY OF MIAMI,
A FLORIDA MUNICIPAL CORPORATION
ATTEST: BY:
TODD B. HANNON JOHNNY MARTINEZ, P.E.
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:
By:
LICENSEE
UPPER EAST SIDE MIAMI, LLC,
a Florida Limited Liability Company.
By:
Signature Seth Greenberg, Mgr.
Print Name
By:
Signature
Print Name
21
CORPORATE/
COMPANY SEAL
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 comer 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.
77
• [ Formatted: Spanish (Spain, Intemational
AND
PARCEL 6 (Clear Channel Parcel — South Side of 79t 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 comer 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
EXHIBIT `B1"
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 CONCEPT PLAN
26
FOSTER
EXHIBIT "C"
CONDITIONS OF USE FOR OCCUPANCY
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 Environmental 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 Agreement.
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 lof 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 agreement 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
, 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
STA 1 E OF FLORIDA
COUNTY OF MIAMI-DADE
) SS
(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
32
Notary Public, State of
Bonded
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
33
$ 1,000,000
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 $ 2 000,000
Each Occurrence $ ,2,000,000
Aggregate
Excess over CGL, Auto and WIC
B. Endorsements Required
City of Miami included as an additional insured
V. Payment and Performance Bond
$ TBD
City of Miami listed as Obligee
VI. Installation Floater
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 $ IBA
B, Coverage Extensions: As provided by carrier
34
VII. Owner's & Contractor's Protective Liability
$1, 000,000
Each Occurrence $1,000,000
Policy Aggregate
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 Cl "Class
V" as to Financial Strength, by the latest edition of Best's Insurance Guide, publishedby
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