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HomeMy WebLinkAboutExhibit 07.24.14REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO NICHOLSON CONSTRUCTION CO. FOR THE OCCUPANCY OF PROPERTY ON VIRGINIA KEY MIAMI, FLORIDA TABLE OF CONTENTS 1. Purpose. 5 2. Occupancy And Use Period. 6 3. Interest Conferred By This Agreement. 6 4. Consideration. 7 5. Utilities. 8 6. Condition Of The Area. 9 7. Alterations, Additions or Replacements. 9 8. Violations, Liens And Security Interests. 9 9. City Access To Facility. 10 10. Indemnification And Hold Harmless. 11 11. Hazardous Materials. 11 12. Insurance. 12 13. No Liability. 14 14. Taxes and Fees. 15 15. Cancellation By Request Of Either Of The Parties Without Cause. 15 16. Termination By City Manager For Cause. 15 17. Notices. 15 18. Advertising. 16 19. Ownership Of Improvements. 17 20. Surrender Of Area. 17 21. Default by Licensee. 18 ii 22. Severability. 18 23. No Assignment Or Transfer. 19 24. Nondiscrimination. 19 25. Affirmative Action. 19 26. Waiver Of Jury Trial. 19 27. Non -waiver Of Violation. 20 28. Amendments And Modifications. 20 29. Compliance With All Applicable Laws. 20 30. Captions. 20 31. Interpretation. 21 32. Entire Agreement. 21 33. Special Events 21 34. Agreement with the Internal Improvement Trust Fund of the State of Florida 21 Exhibit "A": The Property 27 Exhibit "B": Conditions of Use for Occupancy 28 Exhibit "C": List of Equipment/Materials to be stored on Property 29 Exhibit "D": Insurance Requirements 31 Exhibit "E": MDWASD Acknowledgement Letter 34 Exhibit "F": Cap Beam Detail 35 iii REVOCABLE LICENSE AGREEMENT This Revocable License Agreement ("Agreement") is made this _24 day of July , 2014 by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida ("City") and NICHOLSON CONSTRUCTION CO. a for -profit company whose local address is 8725 NW 18th Terrace, Doral, Florida 33172 ("Licensee"). RECITALS WHEREAS, the City is the owner of a tract of uplands on Virginia Key ("Property") as well as submerged lands abutting Virginia Key; and WHEREAS, Licensee is a contractor for and undertaking work on behalf of the Water and Sewer Department of Miami -Dade County ("MDWASD" on the Replacement of the 54" Force Main Under Norris Cut ("Norris Cut Tunnel" or "Project"), MDWASD Project No. DB12-WASD-01 on or around Virginia Key; and WHEREAS, MDWASD acknowledges that Licensee is acting as its agent on its behalf relative to the Licensee's activities pursuant to this Agreement as may be seen by the written acknowledgement of MDWASD attached hereto as Exhibit "F" incorporated by reference herein and made a part hereof; and WHEREAS, the City wishes to support and facilitate the construction of the Norris Cut Tunnel; and WHEREAS, Licensee intends to use a portion of the "Virginia Key" site for construction staging, equipment transport, personnel access and egress, clean fill stockpiling, materials handling, barge unloading and loading activities; 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 Document COM-NCC Jimbos Long Term Revocable License Final (3) 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 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 at Virginia Key, Miami, Florida ("Property") and submerged lands abutting the uplands property. The City has determined that approximately 1.15 (0.29 acres for seawall and 0.92 acres for spoil pile) acres of vacant land within the Property ("Area"), as more particularly described in Exhibit "A" attached hereto and made a part hereof, The Licensee wishes to use the Area for construction staging, equipment transport, personnel access and egress, materials handling, barge loading and unloading, clean fill stockpiling and loading activities ("Permitted Uses"). The City is willing to assist the Licensee by temporarily authorizing the Licensee to occupy and use the Area for the Permitted Uses, under the conditions hereinafter set forth. Additionally, the City will also temporarily authorize the Licensee to use a portion of the submerged lands for barge mooring for uses related to the construction of the "Norris Cut Tunnel". Also, the City will authorize the Licensee to deposit clean fill from Project excavation activities on the Virginia Key spoil pile previously used on the Port of Miami Tunnel Project. Any use of these Areas 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. Document COM-NCC Jimbos Long Term Revocable License Final (3) 2. Occupancy and Use Period. This Agreement is effective as of August 1, 2014 ("Effective Date") and shall expire on the earlier of: (a) Cancellation or teiinination by the express written agreement of the parties hereto; or (b) Cancellation or teiiuination by request of either of the parties hereto, subject to the notice provisions of Paragraph 20, "Cancellation By Request Of Either Of The Parties Without Cause;" or (c) Cancellation pursuant to Paragraph 21, "Teiniination by City Manager for Cause" Or (d) Cancellation of the Agreement between MDWASD and the Licensee; or (e) January 31, 2016. 3. Interest Conferred By This Agreement. Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Area solely for the limited purpose of the Penuitted Use and no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease and the rights of Licensee hereunder are not those of a tenant but are a mere personal privilege to do certain acts of a temporary character and to otherwise use the Area subject to the terms of this Agreement. No leasehold interest in the Area is conferred upon Licensee under the provisions hereof and Licensee does not and shall not claim at any time any leasehold estate or ownership interest in the Area by virtue of this Agreement or its use of the Area hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Area by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions, or alterations to the Area even if such improvements, construction, repairs, partitions, or alterations are authorized by the City. Document COM-NCC Jimbos Long Term Revocable License Final (3) 4. Consideration. 4 (a) Compensation to City In consideration of this Agreement, commencing on the completion of use term, Licensee agrees to provide the following materials and services: 1. Remove existing dock shown in Exhibit A Estimated value of dock removal to City is approximately $10,000.00. 2. Remove deteriorated Cap Beam and install a cast -in -place cap beam as detailed in Exhibit G. Estimated value to City of cap beam removal and new cap beam installation is approximately $85,000.00. 3. Provide landscaping similar to adjacent areas and as needed to alleviate reasonable public safety concerns associated with access to the existing seawall. Landscaping costs are not to exceed $7,500.00 to Contractor. 4. Haul and Furnish Clean Fill obtained from the over 30,000 cubic yards of Excavation on the Project to the Spoil Pile shown in Exhibit A Estimated value to City of clean fill hauling and furnishing is approximately $117,000.00 5. Load and haul stockpiled clean fill from Property within 60 days of Project completion for 1 continuous 5 day, 40 hour, work week using two haul trucks to any city park within a 10 mile radius of Property undergoing environmental remediation. Estimated value to City of loading and hauling clean fill is approximately $58,000.00 Total value of material and services to be provided in consideration of Revocable License to use Property is approximately $277,000.00. 4(b) Annual and. Other Submerged Lands Fees If deemed necessary by the Department of Environmental Protection ("DEP"), in addition to the Materials and Services described above, commencing upon the later of the Effective Date of this Agreement or the effective date of an agreement with the DEP for Document COM-NCC Jimbos Long Tenn Revocable License Final (3) the use of the submerged lands, Licensee shall be obligated to pay an Annual Submerged Lands Fee in accordance with DEP Administrative Rule 18-21.011(l)(b), as the same may be amended from time to time, for the use of the submerged lands portion of the property. The annual submerged lands fees shall be paid to the City at the same location as the Monthly Use Fee and the City shall remit payment to DEP. Licensee shall remit the annual submerged lands fee to the City within five (5) business days of being billed by the City for the same. Licensee shall further be obligated to submit to the City for remittance to the DEP any and all documents required by DEP which may include, but is not limited to, disclosure of any income from wet slips for the submerged lands. 4(c) State Lands Fee. If deemed necessary by the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida ("State"), in addition to the Materials and Services described above, commencing upon the later of the Effective Date of this Agreement or the effective date of an agreement with the State for the use of the Property, Licensee shall be obligated to pay any fees imposed by the State in accordance with Section 253.03, Florida Statutes, as the same may be amended from time to time, for the use of the Property. Licensee shall remit any and all fees imposed by the State to the City within five (5) business days of being billed by the City for the same. 5. Utilities. Licensee shall pay for all utilities and services, including but not limited to, electricity, water, storm water fees, gas, telephone, garbage and sewage disposal, used by Licensee during its occupancy of the Area, as well as all costs for installation of any necessary 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 Area, the Licensee shall reimburse such amount to the City within five (5) calendar days of notification of the City's receipt of said bill. Document COM-NCC Jimbos Long Term Revocable License Final (3) 6. Condition Of The Area. Licensee accepts the Area "As Is", in its present condition and state of repair and without any representation by or on behalf of the City, and agrees that the City shall, under no circumstance, be liable for any latent, patent or other defects in the Area. Licensee, at its sole cost, shall maintain the Area in its current order and repair and in a clean, safe and sanitary condition and shall suffer no waste or injury thereto. Licensee shall be responsible for all repairs to the Area required or caused by Licensee's use of any part thereof. Licensee agrees to maintain the Area at its own cost and expense in accordance and in compliance with the terms and conditions specified in Exhibit "B" attached hereto and made a part hereof. Moreover, Licensee agrees not to store the equipment and materials identified in Exhibit "C" attached hereto and made a part hereof under teirirs 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 "B," Licensee shall not make any repair or alteration required or permitted to be performed by Licensee without first receiving the written approval of the City Manager, which approval may be conditioned or withheld for any or no reason. If the City approves such request, no repair or alteration shall be commenced until plans and specifications therefore shall have been submitted to and approved by the City Manager. Licensee acknowledges that any approval given by the City Manager pursuant to this Section shall not constitute an opinion 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 shallimmediately 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 connected with, Licensee's improvements, use, Document COM-NCC Jimbos Long Tenn Revocable License Final (3) occupancy, or operations in the Area which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors, subcontractors, and material -men for all work and labor done at Licensee's request. Should any lien, claim, or encumbrance be asserted or filed, Licensee shall bond against or discharge the same regardless of validity, within ten (10) calendar days of Licensee's receipt of notice of the filing of said lien, claim, or encumbrance. In the event Licensee fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim and Licensee shall pay the City upon demand any amounts paid out by City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. Licensee further agrees to hold City harmless from and to indemnify the City against any and all claims, demands and expenses, including attorney's fees, of any contractor, subcontractor, material person, laborer or any other third person with whom Licensee has contracted or otherwise is found liable, in respect to the Area. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent or agreement on the part of City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, material person or supplier against any part of the Area or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other agreements involving the Area shall provide for the waiver of any lien rights in the Area and provide that the contracting party agrees to be bound by such provision and include the waiver provision in any sub agreement. 9. City Access To Facility. The City and its authorized representative(s) shall at all times have access to the Area. The City shall have access to and entry into the Area at any time to (a) inspect the Area, (b) to perfoiiii any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, with Licensee not having cured such matter within ten (10) calendar days of such notice, (c) to assure Licensee's compliance with the terms and provisions of this Agreement and all applicable laws, ordinances, rules and regulations, (d) to show the Area, to prospective purchasers or tenants, and (e) for other purposes as may be deemed necessary by the City Manager in the furtherance of the Document COM-NCC Jimbos Long Tern) Revocable License Final (3) 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 indemnify, hold haunless and defend the City from and against any and all claims, suits, actions, damages or causes of action of whatever nature, for any personal injury, loss of life or damage to property sustained in or on the Area, by reason of or as a result of Licensee's use or operations thereon, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorney's fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof; even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents or officials. 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 Document COM-NCC Jimbos Long Tenn Revocable License Final (3) all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Area required for the Licensee's use, or storage of, any Hazardous Materials in or about the Area in confoiiuity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this Agreement, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Area by the Licensee or at the Licensee's direction, to be removed from the Area and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this Article to prohibit the Licensee from operating in the Area for the uses described in the Section of this Agreement entitled "Purpose". The Licensee may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. 12. 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 "D," 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 Document COM-NCC Jimbos Long Term Revocable License Final (3) amounts of insurance coverages as necessary and shall revise Exhibit "E" 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 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 insurance coverage as shown in Exhibit E Items I,II,III,IV. 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 Property or any other person, persons or organizations) except the City, then and in that event, the Licensee may take all Document COM-NCC Jimbos Long Term Revocable License Final (3) 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. 13. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or rented by Licensee, its officers, agents, employees, invitees or patrons occurring in or about the Area that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Area, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Area, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Area or any person whomsoever whether such damage or injury results from conditions arising upon the Area or from other sources. 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 Area, Licensee, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Area. 14. Taxes and Fees. Licensee shall pay before any fine, penalty, interest or cost is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Area, or Document COM-NCC Jimbos Long Tenn Revocable License Final (3) against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Area by Licensee, including, but not limited to, ad valorem taxes, fire fees, and parking surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent of the contested tax together with all interest, costs and expenses, including reasonable attorneys' fees, expected to be incurred. 15. Cancellation By Request Of Either Of The Parties Without Cause. Either party may cancel this Agreement at any time by giving ninety (90) 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. 16. 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 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 make a good faith effort do so after such writtennotice within said ten (10) day period, this Agreement shall be automatically canceled without the need for further action by the City. 17. 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: Document COM-NCC Jimbos Long Term Revocable License Final (3) CITY OF MIAMI LICENSEE City of Miami Nicholson Construction Co. Office of the City Manager Attn: Tom Beggs 444 SW 2 Avenue, 10t1i Floor 12 McClane St. Miami, FL 33130 Cuddy, PA 15031 WITH A COPY TO WITH A COPY TO City of Miami Vivien T. Montz, Esq. Department of Public Facilities Siegfried, Rivera, Lerner, 444 SW 2 Avenue, Suite 325 De La Torre & Sobel, P.A. Miami, FL 33130 201 Alhambra Circle, Suite 1102 Coral Gables, FL 33134 18. Advertising. Licensee shall not permit any signs, decoration, or advertising matter to be placed either in the interior or upon the exterior of the Area 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 Area. If any part of the Area is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Document COM-NCC limbos Long Tenn Revocable License Final (3) Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Area an appropriate sign indicating City's having issued this Agreement. 19. Ownership Of Improvements. As of the Effective Date and throughout the Occupancy and Use Period, title to the Area and all improvements thereon shall be vested in City. Furthermore, title to all Alterations made in or to the Area, whether or not by or at the expense of Licensee, shall, unless otherwise provided by written agreement, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. 20. Surrender Of Area. In event of cancellation pursuant to paragraph 20, "Cancellation By Request Of Either Of The Parties Without Cause," or paragraph 21, "Termination By City Manager For Cause," at the expiration of the Notice Period, Licensee shall peacefully surrender the Area broom clean and in equal order and repair as originally found together with all alterations, fixtures, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, Licensee shall promptly remove all its personal property, trade fixtures and equipment and Licensee shall repair any damage to the Area caused thereby. Should Licensee fail to repair any damage caused to the Area by Licensee within thirty (30) days after receipt of written notice from City directing the required repairs, City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay to the City the full cost of such repairs within five (5) calendar days of receipt of an invoice indicating the cost of such required repairs. At the City's option, City may require Licensee, at Licensee's sole cost and expense, to restore the Area to a condition acceptable to the City. In the event Licensee fails to remove its personal property, equipment and fixtures from the Area within the time limit set by the notice, said property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as City sees fit, all at Licensee's sole cost and expense. Document COM-NCC Jimbos Long Term Revocable License Final (3) 21. Default by Licensee. In the event Licensee is in default of the teiin>.s of this Agreement the City shall have all remedies available to it at law or in equity. In the event that Licensee fails to peacefully surrender the Area at the expiration of the Notice Period provided in Paragraph 20, "Cancellation By Request Of Either Of The Parties Without Cause," or as provided in Paragraph 21, "Termination By City Manager For Cause," after delivery of a notice of cancellation of the Agreement by the City ("City Notice"), then the City shall, in addition to all other remedies, be entitled to collect from the Licensee and Licensee shall pay to the City, a per diem fee of Two Hundred and No/100 ($200.00)for each day that Licensee remains in the Area in violation of this Agreement ("Per diem Fee"). Acceptance of the Per diem Fee by the City shall, in no event, constitute a waiver of the City's rights under this Agreement and shall not prevent the City from pursuing all other remedies to which the City is entitled, including but not limited to, the right to seek injunctive relief to eject Licensee from the Area. 22. Severability. Should any provisions, paragraphs, sentences, words or phrases contained in this Agreement be detemiined 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 Document COM-NCC Jimbos Long 'Tenn Revocable License Final (3) Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. 23. No Assignment or Transfer. The License may not assign or transfer this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement. 24. Nondiscrimination. Licensee shall not discriminate as to race, color, religion, sex, national origin, age, disability or marital status in connectionwith its occupancy and/or use of the Area and improvements thereon. 25. 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. 26. Waiver Of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim. based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provisionis a material inducement for the City and Licensee entering into the subject transaction. Document COM-NCC Jimbos Long Tenn Revocable License Final (3) 27. 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 teams 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. 28. 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. 29. 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 30. Captions. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 31. Interpretation. Document COM-NCC limbos Long Tenn Revocable License Final (3) 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. 32. Entire Agreement. This instrument and its attachments constitute the sole andonly agreement of the parties hereto andcorrectly 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. 33. Special Events The Licensee acknowledges and agrees that from time to time the City may sponsor, allow, or otherwise facilitate Special, Seasonal, Sports, Entertainment, Recreational or similar events (collectively "Special Events") to be produced at the Area. The Licensee agrees to vacate the Area and cease and desist from any activities in the Area during the course of such Special Event provided the Licensee is given ten (30) days prior written notice of the date(s) of the Special Events by the City Manager, Director, or their designee(s). The Special Events shall not exceed a duration of seven (7) contiguous days. 34. Agreement with the Internal Improvement Trust Fund of the State of Florida. The parties acknowledge and understand that this Agreement will cause the City to undertake negotiations as to certain items of consideration with the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. If the results of those Document COM-NCC Jimbos Long Term Revocable License Final (3) negotiations are not satisfactory to the City Manager, the Director, or their designee (in his/her opinion) this Agreement will be cancelled pursuant to Section 20. 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 HANNON DANIEL J. ALFONSO CITY CLERK CITY MANAGER APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: BY: BY: VICTORIA MENDEZ ANN-MARIE SHARPE CITY ATTORNEY RISK MANAGEMENT Document COM-NCC Jimbos Long Term Revocable License Final (3) WITNESSES: Nicholson Construction By: By: Signature Signature Print Name By: Signature Print Name Print Name CORPORATE SEAL Document COM-NCC Jirnbos Long Term Revocable License Final (3) i(. FIBT•Iti UsA EXHIBIT "A" PROPERTY Figure 1 - Area Overview Document COM-NCC Jimbos Long Term Revocable License Final.doc Figure 2 - Seawall Overview Document COM-NCC Jimbos Long Term Revocable License Final.doc 111 Ili HI 1 1 AMAit LAKF 111111111 1111 1111111111111 1111111111111111111u 11.111111111111111e1111111111111111111111111 I II ilillomoi(J).).).);IMI:cccccccccceicccl.1111111c1IIH, ARTHUR LAMB JR,. ROAD Figure 3 - Seawall Document COM-NCC Jimbos Long Term Revocable License Final.doe Limko of ReoLootod ues i)1:111111110,i,!,, 11111 111 Figure 4 - Spoil Pile Document COM-NCC Jimbos Long Term Revocable License Final.doc EXHIBIT "B" 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 shall conduct an Environmental Assessment and soil analysis of the Jimbo's Area before use and after use to deteiiuine if it has left any contaminants. If contamination is found to be left on the Property, Licensee shall at its sole cost and expense pay to clean up its contamination. Additionally, upon request from the City, Licensee shall conduct such soil analysis tests the City may require from time to time during the period of use of the Property. 3. Licensee shall cause a structural inspection of the bulkhead to be conducted by an independent structural engineer before and after the period of its use to determine if Licensee and/or its subcontractors have damaged the bulkhead. 4. Licensee shall have maintained at all times a mobile water spray down and agrees to have its contractor hose spray all trucks' tires leaving the use area to minimize the amount of sand and debris leaving the use area. 5. Licensee shall remove all pipes, fencing, equipment and soil additions and restore area to the same or better condition than the Area was in before its use, except that the invasive trees do not have to be replaced. 6. Licensee agrees to restore and repair the bulkhead to its previous or better condition after the expiration of its use. 7. Licensee's use of the submerged lands for unloading and loading activities may require environmental clearance from the Department of Environmental Protection ("DEP") and other state or local agencies and mitigation. Licensee agrees to pay any environmental mitigation costs arising from the Licensee's or Licensee's subcontractors' use of the Property. Document COM-NCC limbos Long Term Revocable License Final (3) EXHIBIT "C" LIST OF EQUIPMENT/ MATERIALS TO BE STORED ON PROPERTY Equipment: • Various Size Truck Cranes • TBM Parts & Pieces • D4 Dozer • Front End Wheel Loader • Tri-Axle Dump Truck • Concrete Truck • Forklift • Connex Boxes • Barrels • Cones Materials: • Spoils • Sand • Stone • Lumber • Limerock • Pipe • Wood & Steel Forms • Road Plates • Crane Mats • Trench Boxes Document COM-NCC Jimbos Long Tenn Revocable License Final (3) EXHIBIT "D" INSURANCE REQUIREMENTS I. Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury $ 1,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 Endorsements Required City of Miami included as an additional insured pursuant to Endorsement CG 2010 11/85 or equivalent version Virginia Key listed as an additional insured Premises & Operations Liability Contingent and Contractual. Liability Explosion, Collapse and. Underground Hazard Primary Insurance Clause Endorsement Coverage for Injury to leased workers II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single 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. Virginia key listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H Document COM-NCC Jimbos Long Term Revocable License Final (3) $ 1,000,000 IV. 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 V. Umbrella Policy (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 3,000,000 Aggregate $ 3,000,000 Excess over CGL, Auto and W/C B. Endorsements Required City of Miami included as an additional insured Virginia Key listed as an additional insured VIII. Installation Floater (If Applicable) Causes of Loss: All Risk -Specific Coverage Project Location Valuation: Replacement Cost Deductible: $25,000 All other Perils 5% maximum on Wind A. Limit/Value at Location or Site $ TBA. B. Coverage Extensions: As provided by carrier IX. Contractor's Pollution $1,000,000 City of Miami listed as an additional insured Virginia Key listed as an additional insured X. Protection and Indemnity (If Applicable) Jones Act Included City of Miami listed as an additional insured Virginia Key listed as an additional insured Document COM-NCC Jimbos Long Tenn Revocable License Final (3) $1,000,000 XI. Payment and Perfofinance Bond $ 'TBD' City of Miami & Virginia key listed as obligees 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. Document COM-NCC limbos Long Term Revocable License Final (3) EXHIBIT "E" MDWASD ACKNOWLEDGEMENT LETTER Document COM-NCC Jimbos Long Term Revocable License Final (3) EXHIBIT "F" CAP BEAM DETAIL I /Ill Al; LAKL ARTHUR ims JR, ROAD Figure 5 - Cap Beam Plan View Document COM-NCC Jimbos Long Term Revocable License Final.doc ©ackfill i:i 4*6 h ii 2'-G" Anal l,: III tics @ 12" 'lie Figure 6 - Cap Beam Profile View Construction Detail: • Excavation to be cut back • Minimum 6" sheetpile embedment in cap beam • Backfill with compacted fill Document COM-NCC Jimbos Long Tenn Revocable License Final.doc