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HomeMy WebLinkAboutExhibit17-2532 REVOCABLE LICENSE AGREEMENT ISSUED BY THE CITY OF MIAMI TO ELITE MARINE CONCIERGE INC. FOR THE OCCUPANCY OF THE PROPERTY LOCATED AT 3501 RICKENBACKER CAUSEWAY MIAMI, FLORIDA 1. Purpose. 1 2. Occupancy and Use Period. 2 3. Continuous Duty to Operate 2 4. Interest Conferred By This Agreement. 2 5. Use Fee. 3 6. Annual Increase. 3 7. Late Fee. 3 8. Returned Check Fee. 4 9. Security Deposit 4 10. Licensee's Operations at the Area. 5 11. Use of Common Areas. 6 12. Services and Utilities. 6 13. Condition of the Area. 7 14. Alterations, Additions or Replacements. 7 15. Violations, Liens And Security Interests. 8 16. City Access to Area. 9 17. Indemnification and Hold Harmless. 9 18. Hazardous Materials. 10 19. Insurance. 11 20. Safety 11 21. American with Disabilities Act 12 22. No Liability. 12 23. Taxes and Fees. 13 24. Cancellation by Licensee 13 25. This Revocable License Agreement is Revocable At Will 13 26. Notices. 13 27. Advertising. 14 28. Ownership of Improvements. 15 29. Surrender of Area. 15 30. Severability and Savings Clause. 16 31. No Assignment or Transfer. 16 32. Nondiscrimination. 16 33. Affirmative Action. 17 34. Special Event Credit. 17 35. Waiver of Jury Trial. 17 36. Non -waiver of Default. 18 37. Amendments and Modifications. 18 38. Compliance with all Applicable Laws. 18 39. Captions. 18 40. Interpretation. 18 41. Entire Agreement. 19 42. Conflict of Interest 19 Exhibit A - THE PROPERTY Exhibit B - THE AREA Exhibit C — INSURANCE REQUIREMENTS 11 17-2532 REVOCABLE LICENSE AGREEMENT This Revocable License Agreement (the "Agreement") is made this day of 2017, between the City of Miami (the "City") a municipal corporation of the State of Florida and Elite Marine Concierge Inc., a for profit corporation currently in good standing under the laws of the State of Florida (the "Licensee"). WHEREAS, the City is the owner of the property located at 3501 Rickenbacker Causeway, Miami, Florida (the "Property"); and WHEREAS, Licensee has expressed interest in using space within the Property to operate marine related repair operations and a ship store; and WHEREAS, the City and Licensee desire and intend to enter into a Revocable License Agreement; and WHEREAS, this Revocable License Agreement is not assignable; 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 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 uses, and does not permit anything further; NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties hereby agree as follows: 1. Purpose. The City is the owner of real property and improvements including the building, more particularly described in Exhibit "A" attached hereto and made a part hereof 3501 Rickenbacker Causeway, Miami, Florida, known as Marine Stadium Marina (the "Property"). The City has 1 determined that approximately 1,729 square feet of space within the Property (the "Area"), which is depicted in Exhibit "A" attached hereto and made a part hereof, is not needed at this time by any of the City's offices or departments. Licensee shall use and occupy the Area to conduct marine related repair operations, concierge services, concession sales, and sale of boat accessories within the Area, on a non-exclusive basis, for the limited purposes set forth herein and for no other purpose (the "Permitted Use"). Licensee is authorized to occupy and use the Area for the Permitted Use, under the conditions hereinafter set forth. Any use of the Area not authorized under the Permitted Use must receive the prior written consent of the City Manager or the Director of the Department of Real Estate and Asset Management ("Director"), which consent may be withheld or conditioned for any or no reason, including, but not limited to additional financial consideration. 2. Occupancy and Use Period. This Agreement shall commence as of the date upon which the City Manager executes this Agreement and it is attested to by the City Clerk (the "Effective Date"). It is a Revocable License Agreement without a fixed term. This Agreement may be terminated in the following manner: (a) cancellation by Licensee; or (b) revocation or cancellation by the City Manager. 3. Continuous Duty to Operate Except where the Area is rendered untenantable by reason of fire or other casualty, Licensee shall at all times during this Agreement, occupy the Area upon the Effective Date and shall thereafter continuously conduct operations in the Area in accordance with the terms of this Agreement. 4. Interest Conferred By This Agreement, Licensee agrees that this Agreement has been issued by the City to authorize Licensee to occupy the Area solely for the limited purpose of the Permitted Use and no other purpose. The parties hereby agree that the provisions of this Agreement do not constitute a lease and the rights 7 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 terns of this Agreement. No leasehold interest, leasehold estate or similar right 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 or any private property rights 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. 5. Use Fee. In consideration of this Agreement, commencing on the Effective Date and throughout the use period of this Agreement, Licensee agrees to pay to the City a Monthly Use Fee in the amount of Four Thousand Five Hundred Dollars ($4,500.00), plus Florida State Sales and Use Taxes, , for the use of the Area. The Monthly Use Fee shall be paid in advance and in full on the first day of each month, without notice or demand (the "Use Fee"). Payments shall be made payable to the "City of Miami" and shall be mailed to the City of Miami, Department of Real Estate and Asset Management, Attention: Lease Manager, at 444 S.W. 2nd Avenue, 3i`d Floor, Miami, Florida 33130", or such other address as may be designated by the City from time to time. In the event the Effective Date does not fall on the first day of the month, the Use Fee will be prorated on a daily basis for that month. 6. Annual Increase. The Use Fee shall increase annually by Three Percent (3%) on the anniversary of the Effective Date. If the Effective Date does not fall on the first of the month than the annual increase will take place on the first day of the month following the anniversary of the Effective Date. 3 7. Late Fee. In the event the City does not receive any installment of the Use Fee within five days of the date on which it was due, Licensee shall pay to City a late charge in an amount equal to five percent (5%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs the City will incur by reason of late payment by the Licensee. Acceptance of such late charge by the City shall not constitute a waiver of the Licensee's violation with respect to such overdue amount, nor prevent the City from exercising any of its other rights and remedies granted hereunder or at law or in equity. Any amount not paid to the City within fifteen (15) days after the date on which such amount is due shall bear interest at the rate of 18% per annum from its due date until paid. Payment of such interest shall not excuse or cure any violation by the Licensee, 8. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule: Returned Amount Returned Check Fee $00.01 - 50.00 $20.00 $50.01 - 300.00 $30.00 $300.01 - 800.00 $40.00 OVER $800 5% of the returned amount. The Returned Check Fee shall constitute additional fees due and payable to the City by Licensee, upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by the City shall, in no event, constitute a waiver of Licensee's violations with respect to such overdue amount nor prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 4 9. Security Deposit. Simultaneously with the execution of this Agreement, the Licensee shall deposit with the City the sum of Nine Thousand Dollars ($9,000.00) (the "Security") as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement or in connection with this Agreement. If Licensee is in violation of the terms of this Agreement, the City may use, apply or retain all or any part of the Security for the payment of (i) any fee or other sum of money which Licensee was obligated to pay but did not pay, (ii) any sum expended by the City on Licensee's behalf in accordance with the provisions of this Agreement, or (iii) any sum which the City may expend or be required to expend as a result of Licensee's violation. The use, application or retention of the Security or any portion thereof by the City shall not prevent the City from exercising any other right or remedy provided for under this Agreement or at law and shall not limit any recovery to which the City may be entitled otherwise. At any time or times when the City has made any such application of all or any part of the Security, the Licensee shall deposit the sum or sums equal to the amounts so applied by City within ten (10) days of written notice by the City. Provided Licensee is not in violation of this Agreement, the Security or balance thereof shall be returned to Licensee upon the termination of this Agreement or upon any later date after which Licensee has vacated the Area in the same condition or better as existed on the Effective Date, ordinary wear and tear excepted. Upon the return of the Security (or balance thereof) to the Licensee, the City shall be completely relieved of liability with respect to the Security. Licensee shall not be entitled to receive any interest on the Security. 10. Licensee's Operations at the Area. Licensee agrees to the following conditions for conducting its marine related repair operations in the Area and common area: A. Licensee agrees to furnish, at its own cost and expense, all personal property and equipment necessary for marine related repair operations. B. Licensee shall provide adequate personnel to provide quality service during normal business hours. 5 C. The City shall notify Licensee of any employees of Licensee that are not deemed to be performing in the best interest of the City. Licensee shall provide sufficient personnel to professionally and safely conduct its marine related repair operations within the Area and to provide security and control of the patrons and/or guests within the Area. Licensee shall maintain storage tanks, if applicable, in accordance with federal, and state safety standards. 11. Use of Common Area. Licensee shall have the nonexclusive right, in common with the City, to use the common areas of the Property for the purposes intended, and shall comply with all federal, state, and City rules and regulations which may be established from time to time. License may use ten (10) work racks within the common area to repair boats in accordance with its Permitted Use. 12. Services and Utilities. The City shall, at its sole cost and expense, furnish water, sewage, storm water, electric current and dumpster for regular office trash to the Area, as appropriate. Licensee shall, at its sole cost and expense, be responsible for the disposal of all marine repair debris, non - salvageable personal property, including, without limitation, parts or equipment, and trash within the Area and Common Area as part of its Permitted Use. The City shall further permit Licensee to utilize on a non-exclusive basis the public restrooms. Licensee must abide by the rules, regulations, schedules and practices of the City in the administration of these services. The City reserves the right to interrupt, curtail or suspend the provision of any utility service, including but not limited to, equipment serving the Area, to which Licensee may be entitled hereunder when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the judgment of the City desirable or necessary to be made or due to difficulty in obtaining supplies or labor or for any other cause beyond the reasonable control of the City. The work of such repairs, alterations or improvements shall be prosecuted with reasonable diligence. The City shall in no respect be liable for any failure of the utility 6 companies or governmental authorities to supply utility service to Licensee or for any limitation of supply resulting from governmental orders or directives. No diminution or abatement of fees or other charges, nor damages, shall be claimed by Licensee by reason of the City's or other individual's interruption, curtailment or suspension of a utility service, nor shall this Agreement or any of Licensee's obligations hereunder be affected or reduced thereby. 13. 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 circumstances, be liable for any latent, patent or other defects in the Area. Licensee, at its sole cost, shall maintain the Area in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. Licensee shall be responsible for all repairs to the Area required or caused by Licensee's use of any part thereof including but not limited to HVAC maintenance and repairs, roof repairs, plumbing repairs, electrical repairs, pest control. Licensee agrees to make all changes necessary to the Area at Licensee's sole cost and expense in order to comply with all City, County, State and Federal laws, code requirements and rules and regulations for Licensee's use or occupancy thereof. 14. Alterations, Additions or Replacements. Licensee is authorized to perform interior renovations ("Renovations") to the Area in an effort to maximize the use of the Area to perform the Permitted Use. The plans for the Renovations must be submitted to and approved by the Director prior to any work being done in the Area. Licensee shall be solely responsible for applying and acquiring all necessary permits for the Renovations. Upon termination of this Agreement, Licensee at its sole cost and expense is responsible for the removal of the Renovations and for restoring the Area to its original condition if requested by the City. Except in the event of an emergency, Licensee shall not make any repair or alteration required or permitted to be performed by Licensee unless and until Licensee shall have caused plans and specifications therefore to be prepared, at Licensee's sole expense, by an architect or 7 other duly qualified person and shall have obtained Director's approval, which approval may be conditioned or withheld for any or no reason whatsoever. The Licensee shall submit to the City proof of funding and/or its financing plans along with the plans and specifications. The Licensee shall be solely responsible for applying and acquiring all necessary permits, including but not limited to, building permits. The Licensee shall be responsible for all costs associated with any alterations including, but not limited to, design, construction, installation, and permitting costs. All alterations to the Area, whether or not by or at the expense of the Licensee, shall, unless otherwise provided by written agreement of the parties hereto, immediately upon their completion become the property of the City and shall remain and be surrendered with the Area. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify the City of such work. All alterations must comply with all statutes, laws, ordinances and regulations of the State of Florida, Miami -Dade County, the City of Miami and any other agency that may have jurisdiction over the Area as they presently exist and as they may be amended hereafter. By the installation of a fence or any other alteration, addition or replacement the City shall not be excluded from the Area. 15. 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 alterations or improvements, use, occupancy, or operations in the Area which shall be issued by any public authority having or asserting jurisdiction. Licensee shall promptly pay its contractors, subcontractors, and material men for all work and labor done at Licensee's request. Should any lien, claim, or encumbrance be asserted or filed, Licensee shall bond against or discharge the same regardless of validity, within ten (10) calendar days of Licensee's receipt of notice of the filing of said lien, claim, or encumbrance. In the event Licensee fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim and Licensee shall pay the City upon demand any amounts paid out by the City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. 8 Licensee further agrees to hold the 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 man, 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 the 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 man 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. 16. City Access to Area The City and its authorized representative(s) shall at all times have access to the Area. The City shall have access to and entry into the Area at any time to (a) inspect the Area, (b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, 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 lessees or licensees, and (e) for other purposes as may be deemed necessary by the City; provided, however, that the City shall make a diligent effort to provide at least 24-hours advance 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 exercise by the City of the right of entry described herein for the purposes listed above. The making of periodic inspection or the failure to do so shall not operate to impose upon the City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this Agreement. 9 17. Indemnification and Hold Harmless The Licensee shall 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 arising during the period of this Agreement, for any personal injury, loss of life or damage to property sustained in or on the Area and common areas, by reason of or as a result of Licensee, its employees, agents, contractors, subcontractors or officials 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, contractors, subcontractors or officials. 18. 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 Area required for the Licensee's use, or storage of, any Hazardous Materials in or about the Area in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this Agreement, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Area by the Licensee or at the Licensee's direction, to be removed from the Area and transported for use, 10 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. 19. Insurance Licensee, at its sole cost, shall obtain and maintain in full force and effect at all times throughout the period of this Agreement, the insurance coverage shown on the attached Exhibit C. The City of Miami, Division of Risk Management, reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Licensee. The Licensee shall provide any other insurance or security reasonably required by the City. The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to the City. Said notice should be delivered to the City of Miami, Division of Risk Management, 444 SW 2 Avenue, 9th Floor, Miami, Florida 33130, with copy to the City of Miami, Department of Real Estate and Asset Management, 444 SW 2nd Avenue, 3` `I Floor, Miami, Florida 33130, or such other address that may be designated from time to time. A current Evidence and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Department of Real Estate and Asset Management at the commencement of the term of this Agreement and a new Evidence and Policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. In the event Licensee shall fail to procure and place such insurance, the City may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Licensee to the City as an additional fee upon demand and shall in each instance be collectible on the first day of the month or any subsequent month following the date of 11 payment by the City. Licensee's failure to procure insurance shall in no way release Licensee from its obligations and responsibilities as provided herein. 20. Safety Licensee will allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections, the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations, and ordinances. Licensee shall have no recourse against the City, its agents, or representatives from the occurrence, non- occurrence, or result of such inspection(s). Upon occupancy of the Area, Licensee shall contact the Risk Management Department at (305) 416-1800 to schedule the inspection(s). 21. American with Disabilities Act Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of utilizing the Area including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall take affirmative steps to ensure nondiscrimination in employment of disabled persons. 22. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, and/or equipment belonging to or rented by Licensee, its officers, agents, employees, contractors, subcontractors, 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, 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 12 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 privilege to utilize and occupy the Area, Licensee, on behalf of himself, his agents, invitees or patrons, employees, contractors, and subcontractors, 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. Licensee assumes all risk of loss resulting from the use of the Area. This Section shall survive the term or cancellation of the License for the applicable Florida Statutes of Limitations period. 23. 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 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, all governmental levies, assessments, or impositions such as ad valorem taxes, fire fees, and parking surcharges. In the event Licensee appeals a tax or fee, Licensee shall immediately notify the 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 the City or other security reasonably satisfactory to the City in an amount sufficient to pay one hundred percent (100%) of the contested tax together with all interest, costs and expenses, including reasonable attorneys' fees, expected to be incurred. Licensee shall pay all of the said taxes, if any, lawfully assessed on such dates before delinquency. In the event Licensee fails to pay the real property taxes by April 1'` of each year, Licensee shall be responsible to pay any interest and/or penalties charged by the tax assessor's office. Failure of Licensee to such charges, fees, taxes or assessments when due shall constitute a violation of this Agreement. 24. Cancellation by Licensee. Licensee may cancel this Agreement at any time by giving thirty (30) days written notice to the City prior to the effective date of the cancellation. 13 25. This Revocable License Agreement is Revocable At Will. This Agreement extended to the Licensee is revocable and terminable at will by the City Manager and without the consent of the Licensee. The City Manager may revoke or cancel this Agreement at any time by giving thirty (30) days written notice to the Licensor prior to the effective date of the cancellation. The Licensee shall have no recourse from such cancellation except to seek a return of all or a portion its Security Deposit, as warranted. 26. 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: CITY OF MIAMI City of Miami City Manager 3500 Pan American Drive Miami, FL 33133 WITH A COPY TO City of Miami City Attorney 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130 LICENSEE Elite Marine Concierge Inc. 250 NW 23rd Street Miami, FL 33127 Attention: Andrea Bastardo WITH A COPY TO City of Miami Director, Department of Real Estate and Asset Management 400 S.E. 2nd Avenue, 3"d Floor Miami, FL 33131 14 27. Advertising. Licensee shall not permit any signs, decoration, or advertising matter to be placed upon the exterior of the Area without having first obtained the approval of the Director or his/her designee, which approval may be withheld for any or no reason, at his sole discretion. Licensee must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the Miami -Dade County Sign Code, City of Miami Code and the Miami 21 Code, which is the 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 the City directing the required repairs, the City shall cause the Area to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Area an appropriate sign indicating the City's has issued this Agreement. 28. Ownership of Improvements. As of the Effective Date and throughout the use period, title to the Arca 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. This Section shall not apply to a registered vessel who is Owned by an invitee or client of the Licensee or to Licensee's personal property, and all construction materials which are removable and are not fixtures. 29. Surrender of Area. In either event of cancellation pursuant to "Cancellation By Licensee" or "This Revocable License Agreement is Revocable at Will", Licensee shall peacefully surrender the Area broom 15 clean and in good condition and repair together with all alterations, installation, additions and improvements which may have been made in or attached on or to the Area. Upon surrender, Licensee shall promptly remove all of its personal property, all construction materials, all equipment, and Licensee shall repair any damage to the Area caused thereby. Should Licensee fail to repair any damage caused to the Area within ten (10) days after receipt of written notice from the City directing the required repairs, the 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, the 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 and equipment 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 the City sees fit, all at Licensee's sole cost and expense. 30. Severability and Savings Clause. It is the express intent of the parties that this Agreement constitutes a license and not a lease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than a license, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. With regard to those provisions which do not affect the parties intent for this Agreement constitute a license, should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, 16 paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. 31. No Assignment or Transfer. This Agreement is personal to the Licensee. The Licensee may not assign or transfer this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement. 32. Nondiscrimination. Licensee shall not discriminate as to race, color, religion, sex, national origin, age, disability, or marital status in connection with its occupancy and/or use of the Area and improvements thereon. 33. Affirmative Action. Licensee may have in place an aspirational Affirmative Action/Equal Employment Opportunity Policy andmay 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, if promulgated, 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 promptly submit to the Director a Statement of Assurance indicating that their operation complies with all relevant Civil Rights laws and regulations. 34. Special Event Credit. In the event of a special event that takes place at the Miami Marine Stadium that causes the Licensee's business to be shut down, as is currently the case with the Miami International Boat Show, the Licensee shall be provided with a credit towards their Use Fee for the amount of days that the business was shut down. The amount shall be calculated by multiplying the number of days that business was shut down by the per day amount of their Use Fee using a 365 day per 17 year calculation. As an example only; current monthly Use Fee of $4,500 x 12 months = $54,000 as the annual use fee; $54,000/365 days gives you the daily use fee of $147.95; if the business was shut down for 20 days, the credit would be $147.95 x 20 — $2,959.00. 35. Waiver of Jury Trial. The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Licensee entering into the subject transaction. 36. Non -waiver of Default. 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 terns 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. 37. Amendments and Modifications. No amendments or modifications to this Agreement shall be binding on either party unless in writing, approved as to form and correctness by the City Attorney, and signed by both parties. The City Manager is authorized to amend or modify this Agreement as needed. 38. 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, including, without limitation, the City of Miami Charter, City Code and the Miami 21 Code, is a condition of this Agreement, and the Licensee shall comply therewith as the same presently exist 18 and as they may be amended hereafter. The Licensee is responsible applying for and obtaining all development pennits, governmental approvals, governmental consents, and meeting all requirements prescribed by the State of Florida, Miami -Dade County and the City of Miami in all its operations, activities, and uses pursuant to this Agreement. 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. Venue for any legal proceeding shall be in Miami -Dade County. 39. Captions. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 40. 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. 41. 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 is of no force or effect. 19 42. Conflict of Interest. Licensee is aware of the conflict of interest Iaws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. Licensee covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City. Licensee further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Licensee, its employees or associated persons, or entities must be disclosed in writing to the City. 20 IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida By: By: Todd B. Hannon City Clerk Daniel J. Alfonso City Manager APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: By: By: Ann -Marie Sharpe, Director Victoria Mendez Risk Management Department City Attorney LICENSEE: WITNESS: Elite Marine Concierge Inc. By: By: Signature Signature Print Name Andrea Bastardo, President Signature Print Name 21 EXHIBIT A EXiHIBIT "A" LEGAL DESCRIPTION VIRGINIA KEY MARINA 1993 LEASE AREA COMMENCE AT THE SOUTHEAST CORNER OF SECTION 17, TOWNSHIP 54 SOUTH, RANGE 42 EAST; DADE COUNTY, FLORIDA; THENCE ALONG THE SOUTH UNE OF SAID SECTION 17, N.89'56'49.5' W. FOR 2,649,84 FEET TO ITS INTERSECTION WITH THE CENTERUNE OF 'RICKENBACKER CAUSEWAY", AS SHOWN IN "THE METROPOUTAN DADE COUNTY BULKHEAD UNE" ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 74, AT PAGE 9, SHEET NO. 2 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA; THENCE ALONG SAID CENTER LINE N.45`22'07"W. FOR 3,073.07 I-LLT; THENCE N.44`37'53"E. FOR 200.00 FFiT TO THE NORTHEASTERLY RIGHT OF WAY UNE OF SAID "RICKENBACKER CAUSEWAY'"; THENCE ALONG SAID RIGHT OF WAY LINE N.4522'07-W. FOR 32.00 FEET TO THE POINT OF BEGINNING OF THE FOLLOWING DESCRIBED PARCEL OF LAND; THENCE CONTINUE ALONG SAID RIGHT OF WAY UNE N. 45'22'07" W. FOR 488.00 FEET; THENCE N. 44'37'53" E. FOR 161.00 FEET TO I T5 INTERSECTION WITH A UNE PARALLEL WITH AND 361 FEET N0RTHEAS iLt LY OF THE CENTERUNE OF SAID "RICKENBACKER CAUSEWAY'; THENCE ALONG SAID PA,PAI I EL UNE NORTH 45'22'07" W. FOR 285.17 FEET ; THENCE N.4-4'37'53" E. FOR 150.57 FEET TO THE MOST NORTiiERLY UNE OF A 2—FOOT SEAWALL; THENCE ALONG THE FAS ILtcLY FACE OF SAID SEAWALL S.45'22'07"E. FOR '14-1.45 FEET; THENCE S. 76'21'05"E. FOR 137.91 FEET; THENCE S.14'37153"W. FOR 24.97 FEET; THENCE S.44.37'53 W. FOR 114.37 FEET; THENCE S.45`22'07" E. FOR 198.00 FEET; THENCE 5.44'37'53' W. FOR 246.57 FEET TO THE POINT OF BEGINNING. CONTAINING 187,06'2 SQUARE FEET CR 4.294 ACE ?.i0RE CR LESS. NOTE: ABOVE LEGAL DESCRIPTION IS OF BOUNDARY SURVEY VIRGINIA KEY MARINA 1993 LEASE AREA, PREPARED BY FERNANDO Z. GATELL P.L.S. WITH CITY OF MIAMI REFERENCE MISC-51-282 IS A PORTION OF 25.69 ACRES WHOSE FOLIO NUMBERS ARE 01-4217-000-0110, 01-4217-000-0111, 01-4217- 000-0012, 01-4217-000-0030 FOR PROPERTY ADDRESS 3501-3505 RICKENEACKER CAUSEWAY, MIAM.I, FLORIDA 33149-1418, VESTING DEEDS OF OWNERSHIP DEED BOOK 3080, PAGE 129; OFFICIAL RECORDS BOOK 3609, PAGE 160; OFFICIAL RECORDS BOOK 16587, PAGE 1694. • BiSCAVI,M PIAY.W5.4304 e e ..404,6kt?";:I• 7.42:karin..waccktv Dar.a.F, IUJMYTIPI rzioon FkLaN7 r • ug..;' MAIN OFFICE 171'7i'; - OFFICE I .so MIN Mid -- I F.0 ; 11 •;, 11 Z >7 0 - I ° E z „ -CE 'C.4\7.1) 17,0 OR 1E .15 , OSTT .74 •ff- .• P.7PA[P, STCrRACA. ' ROOM ; . '7 ' 31- '1! STORAGE i :. RECEPTION P ROOM Pr' IIC:EIM ---•- "I I.; '1 7_ 1 - i r• 1735 , .4 F.9/ STLIRE ROOM 4./ Si co. C:RAS'S' - • • I " ; ; • I 11 . . .,• ErITRY • • . 1 1"2.1 I I IEN-rkv I 1 I I -— - • """'" . • . . - 16 rai. y • , FLOOR u 111 DC- 4434 EXHIBIT C INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE - MARINA STORAGE AND REPAIR SHOP I. Commercial Marine Liability (Primary and Non -Contributory) A. 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 Damage to Rented Premises $100,000 B. Endorsements Required City of Miami listed as additional insured Contingent Liability & Contractual Premises/Operations Liability Primary Insurance Clause Endorsement Ship Repairs Liability Accidental pollution II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, Owned, or Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an additional insured 24 Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation USL&H Endorsement 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 Vessel/Protection and Indemnity Liability (if applicable) C. Limits of Liability Each Occurrence/Aggregate Limit $1,000,000 Jones Act Included City of Miami listed as additional insured V. MOLL A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 1,000,000 Aggregate $ 1,000,000 City of Miami listed as additional insured VL Umbrella Liability Each Occurrence $1,000,000 Policy Aggregate $1,000,000 City of Miami listed as an additional insured. Excess Follow Form over all applicable liability policies contained herein. 25 VII. Property Commercial Property Insurance covering all buildings, docks, fixtures, along with equipment, inventory or contents, improvements, and betterments owned by LICENSEE. The property policy shall, at a minimum, cover the perils insured under the ISO Special Causes of Loss Special Form (CP 10 30), or a substitute form providing equivalent coverages, including debris removal, windstorm, hail and flood, demolition and increased cost of construction that are caused by Legal requirements regulating the construction or repair of damaged Facilities, including an ordinance and law endorsement, in an amount of not less than the replacement cost of the property insured. In addition, the property policy should include coverage for business interruption including extra expense coverage written on an actual loss sustained basis, if available, along with sprinkler leakage and plate glass if applicable. The amount of insurance shall equal the full estimated replacement cost of the Facilities and Business Personal Property owned by LICENSEE. The City shall be included loss payee under the commercial property insurance. The above policies shall provide the City of Miami with written notice of cancellation in accordance with 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 for certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. The City reserves the right to request copies of all insurance policies associated with this agreement, including any, and all applicable policy endorsements. 26