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HomeMy WebLinkAboutExhibitREVOCABLE LICENSE ISSUED BY THE CITY OF MIAMI TO YACHTING PROMOTIONS, INC. FOR THE USE OF A PORTION OF SUBMERGED LANDS LYING BETWEEN MACARTHUR CAUSEWAY AND VENETIAN CAUSEWAY LOCATED IN MIAMI, FLORIDA 46476841;4 REVOCABLE LICENSE This Revocable License ("License") is entered this day of 2018, by and between the City of Miami, a municipal corporation of the State of Florida (the "City"), and Yachting Promotions Inc., a Florida corporation, whose address is 1115 NE 9th Avenue, Fort Lauderdale, FL 33304 ("Licensee"). RECITALS WHEREAS, City is the fee simple owner of certain submerged lands lying between Macarthur Causeway and Venetian Causeway (hereinafter referred to as the "License Area") located in Miami -Dade County, Florida; and WHEREAS, Licensee operates the Miami Yacht Show (each hereinafter referred to as the "Show" or collectively the "Shows") which event is scheduled for the dates as outlined in Exhibit A; and WHEREAS, Licensee desires to use City's property for the purpose of operating the Miami Yacht Show in the License Area; and WHEREAS, the Miami Yacht Show will generate business, tourism, and jobs to the City and its residents; and WHEREAS, in 2018 the Miami Yacht Show generated over $486,000,000 in economic output to the State of Florida; and WHEREAS, the Miami Yacht Show attracts over 29,000 visitors, 30% of whom come from outside of Florida; and WHEREAS, the Miami Yacht Show provides the equivalent of 3,576 full time jobs; and WHEREAS, City desires to grant to Licensee a license for the aforementioned purpose; and WHEREAS, except as specifically provided herein, this License is not assignable; and 46476841;4 WHEREAS, this License is revocable at -will by the City Manager and without the consent of the Licensee pursuant to the notice provisions of Section 18 herein as applicable; and WHEREAS, this License does not transfer any interest, a right to use for any general purpose, or any right to exclude the City from any right in real property, including any leasehold interest in real property owned by the City; and WHEREAS, this License does not convey, hypothecate, confer or transfer a right to use any real property for any general purposes; and WHEREAS, this License permits only certain, enumerated, specific and listed permitted uses herein, and does not permit anything further; and WHEREAS, the Parties jointly and voluntarily stipulate as to the accuracy of these recitals, including but not limited to all measurements of licensed area and time. NOW THEREFORE, in consideration of the mutual covenants set forth herein, the Parties hereby agree as follows: 1. Recitals. The foregoing recitals are hereby incorporated and made a part of this License. 2. Definitions. a) "City Manager" is the City Manager for the City of Miami. b) "City" shall mean the City of Miami, a Florida municipal corporation, for purposes of this License in day to day decisions the City shall mean the "City Manager," unless a different City body or official is specifically designated in this Agreement. c) "Board of Trustees for Internal Improvements Trust Fund" (hereinafter "TIITF") shall refer to the state agency that owns state-owned lands and administers these state owned lands through its administrative agency, the State of Florida Department of Environmental Protection ("DEP"). 46476841;4 2 46476841;4 d) "DEP" shall mean the State of Florida Department of Environmental Protection, which is the government agency overseeing the administration of state-owned submerged lands on behalf of TIITF. e) "Director" shall mean the Director of the City of Miami's Department of Real Estate and Asset Management. f) "Effective Date" of this License is the date of execution of the License by the last of the Parties. g) "Environmental Laws" means all applicable requirements of federal, state and local environmental, public health and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives, including but not limited to, all applicable requirements of: the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act; the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of 1975. h) "Force Majeure" means an event whereby the Property, or any portion thereof, shall be destroyed or damaged, as a result of any event beyond human control, including but not limited to acts of national security, national emergency acts of God, war, act or threats of terrorism, Government regulation, strikes (other than strikes of Licensee's employees), fire or other natural calamity, disorder, civil disobedience, curtailment of transportation facilities or service, or any occurrence which makes it inadvisable, illegal, or impossible for Licensee to perform its obligations under this License. 3 i) "License Period" shall mean the period of time shown on Exhibit A attached hereto which may be modified from time to time if requested by Licensee and approved in writing by the City Manager. j) "Property" shall mean the area of submerged lands owned by the City, located at between Macarthur Causeway and Venetian Causeway, and between the shoreline and the West Edge of the Intracoastal Waterway Channel, as shown on Exhibit "B" 3. Permitted Uses. Subject to the written approval of TIITF, existing zoning and other governmental restrictions and the issuance of this License, this License authorizes the Licensee to occupy and use the Property for the Permitted Uses, including but not limited to set up, operation, and take -down of the Show, as defined in this Section; Licensee shall operate, manage, supervise and administer activities for its use of the Property as an independent contractor and not as an employee of the City. Licensee may request written consent from the City Manager or his/her designee to use the Property for any other use, but shall not be authorized to use the Property for that use until Licensee has received the written consent of the City Manager or his/her designee, which consent may be conditioned or withheld in the sole discretion of the City Manager or his/her designee. The Property shall be used and occupied by the Licensee solely for the purposes of presenting the Miami Yacht Show (hereinafter referred to as the "Show" or collectively the "Shows"), installing and removal of such temporary improvements (including docks and pilings) necessary to operate the Show, selling, using or displaying any goods and/or products related to the Show (such as boats, engines, marine accessories and products that have a marine application), including those goods, services, products and supplies used in, or which service, the marine industry and recreational boating on, to, or from the License Premises, and to grant to third parties the right to sell, use or display any goods or products on, to, or from the Property. (collectively the "Permitted Uses"). 46476841;4 4 Licensee shall apply and City shall, at no cost or expense to the City, assist with any required applications or approvals from TIITF/DEP for a Temporary Use Agreement ("TUA") or Submerged Land Lease, if applicable. The Licensee shall be required to pay for all costs, fees, and expenses associated with the application to TIITF/DEP for a pass - through TUA or Submerged Land Lease to the City, including but not limited to survey fees required to identify and demarcate the proposed Submerged Lands Area according to DEP survey standards, TIITF/DEP back -fees, if any, TUA and Submerged Land Lease application fees and annual DEP lease fees. The use of the Submerged Lands Area of the Property is subject to the approval of TIITF/DEP for a Temporary Use Agreement and/or Submerged Lands Lease to the City, as applicant and shall be subject to any restrictions set forth by TIITF/DEP for the use of said Property, as more particularly described in prospective Exhibits "C" attached hereto to be incorporated and made a part hereof. Licensee will be responsible for dock construction within the Property, as well as securing all required permits necessary for the construction and performing any mitigation required by permitting agencies. Licensee will also be responsible for the prompt removal of the dock and any restoration that may be required by the City or permitting agencies after the last day of the Show. 4. Manner of Property Use. Licensee' s use of the Property is non-exclusive and Licensee acknowledges and agrees to abide by the terms and obligations as set forth in the services to be provided, the manner of operation, use areas and maintenance and utility obligations, provided however, the City agrees not to enter into another License or other similar Agreement on this Property that would interfere with or disrupt Licensee's ability to operate on the Property and/or the Submerged Lands Area so long as this License is in effect. No other City lessee or licensee may use space on the property in competition with the Show during the License Period. The Licensee will be permitted access to the Property to set up and erect necessary equipment during the License Period. If necessary, additional time may be provided 46476841;4 5 subject to City Manager approval, at the same rate of the Use Fee. The Licensee has no right to access the Property at any other time or date. 46476841;4 A. Dispensing of Alcoholic and Non-alcoholic Beverages on the Property. The City of Miami reserves the right to restrict alcohol sales in all City owned properties and/or operated facilities. Subject to the Licensee complying with all requirements, the City has elected to allow for the sale of alcoholic beverages in conjunction with the Show. No glass bottles are allowed to be dispensed. The concessionaire(s), who for purposes of this Section is/are an authorized agent(s) of the Licensee, are jointly and severally responsible for obtaining all applicable alcoholic beverage permits from the State of Florida Alcohol & Beverage Department of Business Regulation. In order to obtain a liquor permit, Licensee and/or any concessionaire must follow the guidelines set forth by the State of Florida and with complying with all State of Florida Licensing, City Code and Zoning Ordinance requirements for dispensation of alcoholic beverages. Those steps include: i) Providing City with General Liability and Liquor insurance, subject to the written approval of the City' s Risk Manager, whereupon City will provide a zoning letter, ii) Zoning approval, iii) Department of Revenue approval, iv) Obtaining license from Department of ATB, and v) All taxes, related to the sale of alcoholic beverages, are the responsibility of the concessionaire. B. Alcohol Wrist Band Policy. All concessionaires vending alcoholic beverages in City operated facilities will be required to identify consumers of legal age. Failure to comply with this rule, 6 whether by the concessionaire or their representative, may result in the immediate cancellation of alcohol sales. Concessionaires may provide wristbands as a means to identify consumers of legal age. C. Legal Requirements Concessionaires, as a condition precedent to vending alcoholic beverages, beer, or wine, must comply with regulatory requirements, all State of Florida, Miami - Dade County, and City requirements, as set forth in the City of Miami City Code and Zoning Ordinance(s). 5. Additional Expenses. Under no circumstances will the City be liable for any costs or expenses incurred by Licensee under this License or as a result of its operations or related activities beyond those that are expressly and specifically set forth in this License. 6. Occupancy and Use Period. There is no stated or expressed term for this License. It has an indefinite term and may be revoked at the will of the City Manager, for convenience and without cause. The Effective Date of this License is the execution date of the License by the last of the Parties and shall continue until Revocation/ Cancellation at Will by the City Manager, for convenience as provided in Paragraph 19 herein, or terminated by the following: a) Termination at will, subject to the notice provisions of Section 33 herein b) Termination due to an unpermitted assignment as provided in Section 17 c) Termination for cause under Section 19 If it is the City's intent to terminate the license agreement pursuant to Subpart 6(a) above, the City shall provide written notice of termination to Licensee at least three hundred sixty (360) days prior to the intended termination date. 46476841;4 7 7. Fees. A. Use Fee. In consideration of this License, Licensee shall pay to the City an amount equal to $0.08 per square foot per month for the City submerged land ("Use Fee"), plus State of Florida Sales and Use Tax, and any similar State or County levies or impositions, payable in the manner set forth in Section 7(B) below for the use of the Property. The Use Fee shall be calculated based on the area of City submerged land preempted by the Show, excluding areas which are restricted by the applicable regulatory agencies due to presence of seagrass or other benthic habitat (the "License Area"). If it is determined that the Licensee requires the use of additional adjacent submerged lands, or if the Licensee requires more than a twenty four (24) hour extension of the License Period, the cost shall be increased by the per square foot amount mentioned above. For the first year, the License Area shall be 747,297 square feet as set forth on the attached Exhibit B, for a Use Fee of $59,783.76 per month ("Monthly Use Fee") plus any applicable sales or use taxes. Any partial month shall be calculated using the Monthly Use Fee in effect at the time, multiplied by 12 months and then divided by 365 for the daily amount. Any additional time extensions shall be charged at the above mentioned daily amount. Subject to compliance with applicable laws, approvals and regulations, the Parties shall use their reasonable best efforts for the Show's production on the Property in future years. Should the Show occur in the future on the Property, the Use Fee shall be increased on an annual basis by the greater of three percent (3%) or CPI adjustment, whichever is greater, although at no time shall the increase be greater than five percent (5%). 46476841;4 B. Payment of Use Fee. Licensee shall pay to the City the Use Fee, plus State of Florida Use Tax, if applicable, on or before January loth each calendar year. 8 Payments of the Use Fee, as applicable shall be made payable to "City of Miami" and shall be mailed to 444 S.W. 2nd Avenue, 3th Floor, Department of Real Estate and Asset Management, Miami, Florida 33130, or such other address as may be designated in writing from time to time from the City Manager or the Director or his/her authorized designee. 8. Security Deposit. On or before January 10th of each year, the Licensee shall deposit with City a Security Deposit in the amount of One Hundred Thousand Dollars ($100,000.00), which may, at Licensee's election, be in the form of a letter of credit as provided in Exhibit "E" attached hereto, as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this License or in connection with this License ("Security"). If Licensee is in violation beyond any applicable notice or cure period, 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 City on Licensee's behalf in accordance with the provisions of this License, or (iii) any sum which City may expend or be required to expend as a result of Licensee's violation. Should the City use, apply or retain all or any part of the Security, Licensee shall reimburse the amount used, applied or retained within thirty (30) days of the City's application of the Security. 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 License or at law and shall not limit any recovery to which the City may be entitled otherwise. Provided Licensee is not in violation of this License, the Security or balance thereof, as the case may be, shall be returned to Licensee not later than thirty (30) business days after the date which Licensee has vacated the Property and returned it to 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 46476841;4 9 any interest on the Security. As this is a License, the Parties stipulate that Chapter 83, Florida Statutes, does not apply to the Security and this is NOT a Landlord/Tenant Agreement. 9. Annual and Other Submerged Lands Fees. Should the Licensee apply for a TUA and/or a Submerged Land Lease for the benefit of the Licensee, Licensee shall be obligated to pay any Annual Submerged Lands Fee as determined by TIITF/DEP in consideration for use of the Property ("Annual Submerged Lands Fee"), if applicable. The Annual Submerged Lands Fee shall be due and payable within ten (10) business days of Licensee's receipt of invoice. Unless otherwise instructed by TIITF/DEP, said fee shall be payable by the Licensee to the City, and the City shall forward said fee to TIITF/DEP. If remitted to the City, Licensee agrees to remit the Annual Submerged Lands Fee to the City's Department of Real Estate and Asset Management ("DREAM"), 444 SW 2nd Avenue, 3rd Floor, Miami, FL. 33130, Attention: Lease Manager, within ten (10) 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 TIITF/DEP any and all documents and reports required by TIITF/DEP. 10. Returned Check Fee. In the event any check is returned to the City as uncollectible, the Licensee shall pay to the 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. 46476841;4 10 Such 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 such Returned Check Fee by the City shall not, 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. In the event the City must institute a civil suit to collect a returned check, the City shall be entitled to recover a reasonable attorney's fee as provided by Florida Statutes. 11. Late Payments. Licensee hereby acknowledges that late payment of undisputed charges by the Licensee to the City of the Use Fee and other sums due hereunder will cause the City to incur costs not contemplated by this License, the exact amount of which will be extremely difficult to ascertain. Accordingly, if any installment of the Use Fee or any other undisputed sum due from Licensee shall not be received by the City within fifteen (15) days after the date on which such undisputed sum is due; Licensee shall pay to the City a late charge 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 Licensee. Acceptance of such late charge by the City shall not constitute a waiver of the Licensee's default 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. The terms of this Section shall not apply to any charges which are the subject of a good faith dispute which are promptly controverted in writing setting forth all pertinent details by the party seeking to avoid payment. Promptly shall mean within five (5) business days of the due date. 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 Eighteen Percent (18%) per annum from its due date. Payment of such interest shall not excuse or cure any default by Licensee under this License. 46476841;4 11 12. Utilities. Licensee shall pay for all utilities and services, including but not limited to, electricity, water, storm water fees, gas, telephone, telecommunications, garbage and sewage disposal used by Licensee during its occupancy of the Property as well as all costs for installation of any necessary lines and equipment. In the event that the City is billed for any utility or service that is a result of Licensee's use of the Property, the Licensee shall reimburse such amount to the City within ten (10) business days of notification of the City' s receipt of said bill. The City, acting by and through its City Manager, reserves the right to interrupt, curtail or suspend the provision of any utility service, 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 Manager 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 companies or governmental authorities to supply utility service to Licensee or for any limitation of supply resulting from governmental orders or directives. Licensee shall not claim any damages by reason of the City's or other individual's interruption, curtailment or suspension of a utility service, nor shall the License or any of Licensee's obligations hereunder be affected or reduced thereby. 13. Taxes. If Property were to become taxable, Licensee will pay its proportionate share of taxes for the number of days of the event, including set up and tear down, calculated on a full calendar year of three hundred and sixty five (365) days. Licensee will be responsible for payment of sales and use taxes and similar governmental impositions or levies. 46476841;4 12 14. Intentionally Deleted 15. Licenses, Authorizations and Permits. Licensee shall obtain, or cause to be obtained, and maintain in full force and effect throughout the term of this License, at its sole expense, all licenses, authorizations and permits that are necessary for Licensee to conduct its Show. Licensee shall be responsible for paying the cost of said applications and obtaining said licenses, authorizations and permits. A. Location Releases. The City will execute and provide to Licensee, forthwith upon demand by Licensee and without any fee or charge to Licensee, all "location releases" and similar authorizations as may be required from time to time by Licensee in order to allow audiovisual television or film producers to film the Property or any Show to be performed on the Property. 16. This License Confers No Exclusive Possession of the Property. This License confers no exclusive possession of the Property, provided however, the City agrees not to enter into another License or any other similar Agreement on this Property that would interfere with Licensee's ability to operate for the Permitted Uses on the Property so long as this License is in effect. This will not be construed to prevent the Licensee from restricting access to the Show. The Licensee cannot exclude the City from the Property. The City agrees not to use or permit others to use the Property and facilities under the control of the City during the License Period except as mutually agreed by the City and Licensee. Licensee acquires no exclusive right to use the facilities other than the operation of the demised Property during the term of this License. This License solely authorizes Licensee to the temporary use of the Property for the limited purposes set forth herein and for no other purpose. The Parties hereby agree that 46476841;4 13 the provisions of this License do not constitute a lease. The rights of Licensee hereunder are not those of a tenant, but are a mere personal privilege to do certain acts of a temporary character on the Property and to use the Property, subject to the terms of this License. The City retains dominion, possession and control of the Property. Therefore, no lease interest in the Property is conferred upon Licensee under the provisions hereof. Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of this License or its use of the Property hereunder. Additionally, Licensee does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Property by virtue of any expenditure of funds by the Licensee for improvements, construction, repairs, partitions, or alterations to the Property which may be authorized by the City Manager or his/her designee. 17. This License is Not Assignable. The City has relied on the extensive and unique reputation and experience of Licensee in granting this License. The License is personal to the Licensee. Licensee shall not sell or assign this License or any part thereof to any other party. The License granted by this License is personal to the Licensee. Any assignment of this License contrary to the foregoing provision, whether voluntary or involuntary, shall be void and shall confer no right upon such assignee, shall constitute a default under this License, and shall result in an automatic revocation of the License and the immediate forfeiture of the rights of Licensee hereunder. Notwithstanding the above, Licensee shall have the right, without Licensor's consent, but upon written notification to Licensor, to assign this License to any parent or subsidiary entity or to any entity which is controlled by, under the control of, or under common control with Licensee. 18. Cancellation / Revocation -at —Will by the City Manager without Cause. The City Manager may cancel or revoke this License without cause that is for convenience, at any time, with written courtesy notice of the City Manager to Licensee, giving not less than three hundred sixty (360) days prior written notice of the revocation to 46476841;4 14 the Licensee. Such notice should be given in the manner specified by Section 33. This License that is granted to the Licensee is revocable -at -will by the City, through its City Manager, without the consent of the Licensee, in accordance with this License being by express understanding of the parties a Revocable at Will License. 19. Termination for Cause. Each party agrees to abide by each and every term and condition of this License. If either party materially breaches the terms, restrictions or conditions of this License, then the nonbreaching party shall give the breaching party twenty (20) days written notice within which to cease such violation or correct such deficiencies. Upon the breaching party' s failure to do so, the nonbreaching party may cancel this License upon giving ten (10) days written notice to the breaching party and thereafter the License shall be deemed automatically canceled without the necessity for further action by the nonbreaching party. Termination for cause shall include, without limitation, any one of the following acts or omissions: (a) Failure to pay any payment or any portion thereof within ten (10) days of due date; (b) Failure to carry insurance as required in this License; (c) Any other event which the City Manager deems to be a material default; or (d) Failure to comply with the terms and conditions of this license which are material or substantial in nature. Notwithstanding this provision or any other provision in this License, this License extended to the Licensee is revocable -at -will by the City, through its City Manager, without the consent of the Licensee. 20. Intentionally Deleted 46476841;4 15 21. Improvements, Alterations, Additions, or Replacements. Licensee will be erecting or constructing temporary improvements for the Show and shall coordinate all temporary improvements with the City. Except in the event of an emergency, Licensee shall not make any other additional repairs or alterations required or permitted to be performed by Licensee unless and until Licensee shall have caused plans and specifications therefore to be prepared, at Licensee's sole expense, by an architect or other duly qualified person and shall have obtained the approval of the City Manager or his/her designee, which approval may be conditioned or withheld for any or no reason whatsoever. In the event of an emergency, Licensee may reasonably proceed to perform such repair work and shall immediately notify the City of such work. The Licensee shall submit to the City all plans and specifications for the temporary improvements or any additional repairs or alterations for the Show. 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 temporary improvements and/or alterations including, but not limited to, design, construction, installation, and permitting costs. The temporary improvements and 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 Property as they presently exist and as they may be amended hereafter. By the installation of any alteration, addition or replacement, the City shall not be excluded from the Property. 22. Intentionally Deleted. 23. Reasonable Efforts. For purposes of this License, the Parties shall make good faith efforts, subject to the revocation provisions in Section 18 of this License, to assist and facilitate future productions of this Show to take place on the Property. 46476841;4 16 24. Intentionally Deleted 25. Intentionally Deleted 26. Liens. The Licensee shall not knowingly suffer or permit any liens to be filed against the title to the Property by any reason whatsoever, including but not limited to, work, labor, services or materials supplied to the Licensee or anyone having a right to possession of the Property as a result of an agreement with or without the consent of the Licensee or Internal Revenue Service (IRS). Nothing in this License shall be construed as constituting the consent or request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or material man for the performance of any labor or the furnishing of any materials, for any specific work on the Property nor as giving the Licensee the right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any construction liens against the City's interest in the Property. If any liens shall at any time be filed against the Property, the Licensee shall cause it to be discharged of record within thirty (30) days after the date that it has notice of its filing. If the Licensee shall fail to discharge a lien within that period, then in addition to any other right or remedy, the City may, but shall not be obligated to, discharge the lien either by paying the amount claimed to be due or by procuring the discharge of the lien by deposit in court or bonding. The City shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the construction lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor with interest, costs and allowances with the understanding that all amounts paid by the City shall be repaid to the City by the Licensee immediately upon rendition of any invoice or bill. The Licensee shall not be required to pay or discharge any construction lien so long as the Licensee shall in good faith proceed to contest the lien by appropriate proceedings and if the Licensee shall have given notice in writing to the City of its intention to contest the 46476841;4 17 validity of the lien and shall furnish reasonably satisfactory evidence that funds are or will be available to pay the amount of the contested lien claim with all interest on it and costs and expenses, including reasonable attorneys' fees to be incurred in connection with it. The City shall be entitled to pay the lien or compel the prosecution of any action with respect thereto during any time that the Licensee is contesting such lien. 27. City Access to Property. The City and its authorized representative(s) shall at all times have access to the Property. The City will maintain a complete set of keys to the Property. Licensee, at its sole cost and expense, may duplicate or change key locks to the Property but not until first receiving written approval from the Director for such work. In the event Licensee changes key locks as approved by the Director, Licensee, at its sole cost and expense, must also provide to the City a copy or copies of said keys, if more than one copy is required. The City shall have access to and entry into the Property at any time to (a) inspect the Property, (b) to perform any obligations of Licensee hereunder which Licensee has failed to perform after written notice thereof to Licensee, Licensee not having cured such matter within ten (10) days of such notice, (c) to assure Licensee's compliance with the terms and provisions of this License and all applicable laws, ordinances, rules and regulations, (d) to show the Property, to prospective purchasers, tenants or others, and (e) for other purposes as may be deemed necessary by the City Manager or his/her authorized designee in the furtherance of the City' s corporate purpose; provided, however, that 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 inspections or the failure to do so shall not operate to impose upon the City any liability of any kind whatsoever nor relieve the Licensee of any responsibility, obligations or liability assumed under this License. 46476841;4 18 28. 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). 29. No Claim to Assets or Rights of Licensee. By entering into this License, none of the Parties are granted any assets, rights, titles or interest to the other' s assets, rights, title or interests, except as otherwise set forth in this License. 30. Indemnification. Licensee shall indemnify, defend at its own cost and expense and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney' s fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i) the performance or non- performance of the services contemplated by this License which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Licensee or its employees, agents or subcontractors (collectively referred to as "Licensee"), regardless of whether such Liabilities are, or are alleged to be directly or indirectly caused, in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of the Licensee to comply with any of the Sections herein or the failure of the Licensee to conform to applicable statutes, ordinances, permits, or other regulations or requirements of any governmental authority, federal or 46476841;4 19 state, in connection with the performance of this License, Licensee expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Licensee, or any of its subcontractors, as provided above, for which the Licensee' s liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation, Jones Act, Longshoreman' s Act, or similar laws. 31. Insurance. Licensee, at its sole cost, shall obtain and maintain in full force and effect, at all times, throughout the period of this License, the insurance coverage as set forth in Exhibit "D" attached hereto and made a part hereof. 32. No Liability. In no event shall the City be liable or responsible for injury, loss or damage to the property, improvements, fixtures and/or equipment belonging to or rented by Licensee, their officers, agents, or employees, invitees or patrons occurring in or about the Property that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood, steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any part of the Property, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property, or from a hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Property or any person whomsoever whether such damage or injury results from conditions arising upon the Property or upon other portions of the Property or from other sources. Licensee indemnifies the City, its officers, agents and employees from and against any and all such claims in accordance with the provisions of Section 30 herein. Licensee further acknowledges that as lawful consideration for being granted the right to utilize and occupy the Property, Licensee, on behalf of itself, its agents, contractors, concessionaires, invitees, and employees, does hereby release from any legal liability the 46476841;4 20 City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from Licensee's use of the Property. Licensee, 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, including, without limitation, any Hazardous Material Laws ("Hazardous Materials Laws") relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances, 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, agreements and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Property, including any upland or submerged land, required for the Licensee's use, or storage of, any Hazardous Materials in or about the Property in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon revocation of this License, the Licensee shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed, or inadvertently released, in or about the Property, in, on, or around any upland or submerged land, by the Licensee or at the Licensee' s direction, to be removed from the Property and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this Paragraph to prohibit the Licensee from operating in the Property for the Permitted Uses. 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, and/or mitigated according to, and in compliance with, all applicable governmental requirements. The requirements of this Section of the License Agreement shall survive the expiration or termination of this Agreement. 46476841;4 21 33. Notices. All notices or other communications, which shall or may be given pursuant to this License, shall be in writing and shall be delivered by hand, telecopy, or registered mail addressed to the other party at the address indicated herein. Such notice shall be deemed given on the day on which hand delivered; faxed or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. If to City of Miami: With a copy to: If to Licensee: 46476841;4 22 City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 City Attorney City of Miami 444 SW 2nd Avenue Suite 945 Miami, Florida 33130 Director Department of Real Estate and Asset Management City of Miami 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 Yachting Promotions, Inc. Attn: Andrew Doole, VP/GM & Ricardo Strul, VP/CFO 1115 NE 9th Avenue Fort Lauderdale, FL 33304 34. Advertising. Concessionaires of the Licensee shall be authorized to place signs or advertising matter on the temporary docks installed on the Property; provided however that the signage shall only promote and advertise the Licensee and Concessionaires and shall not contain any offensive or explicit images of a sexual or violent nature. Licensee shall, at its sole cost and expense, cause its concessionaires to install, provide, and 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 Sign Regulations in the City of Miami Code and Zoning Ordinance and the Miami -Dade County Sign Code, as applicable. Upon the cancellation of this License, Licensee shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Property. If any part of the Property is in any way damaged by the removal of such items, said damage shall be repaired by Licensee at its sole cost and expense. Should Licensee fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from the City directing the required repairs, the City shall cause the Property to be repaired at the sole cost and expense of Licensee. Licensee shall pay the City the full cost of such repairs within ten (10) business days of receipt of an invoice indicating the cost of such required repairs. Licensee hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Property an appropriate sign indicating City's having issued this License. 35. Public Records. Licensee understands that the public shall have access, at all reasonable times, to City contracts and all documents, records and reports maintained and generated pursuant to this License, pursuant to the provisions of Chapter 119, Florida Statutes, as amended, including compliance with the provisions of Section 119.0701, Florida Statutes, entitled 46476841;4 23 "Contracts; public records" and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. 36. Compliance with Laws. Licensee and/or its authorized agents agree to comply with all applicable laws, codes (including, but not limited to, the Florida Building Code as it may be amended), ordinances and regulations enacted or promulgated by federal, state, county, and city government including the provisions of the Charter and Code of the City. Licensee and/or its authorized agents shall also comply with reasonable directives of the City Manager. 37. Conflict of Interest. Licensee is aware of the conflict of interest laws of the City (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 further covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this License, has any personal financial interests, direct or indirect, with the City. Licensee further covenants that, in the performance of this License, no person or entity having such conflicting interest shall knowingly be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Licensee, its employees or associated persons, or entities must be disclosed in writing to the City. 38. Nondiscrimination. Licensee represents and warrants to the City that Licensee does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Licensee' s use of the Property on account of race, color, sex, religion, age, handicap, marital status or national origin. 46476841;4 24 39. No Discrimination in Hiring. In the performance of this License or any extension thereof, Licensee and/or its authorized agents shall not discriminate against any employee or applicant for employment because of age, sex, sexual orientation, race, color, religion, familial status, ancestry or national origin. Licensee and/or its authorized agents will take affirmative action to insure that minority applicants are employed and that employees are fairly treated during employment without regard to their age, sex, sexual orientation, race, color, religion, familial status, ancestry, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. 40. Americans With Disability Act. Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of providing any work, labor or services funded by the City including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall take affirmative steps to ensure nondiscrimination in employment of disabled persons. 41. Compliance with Environmental Laws. Licensee represents and warrants that during the use period, it will not use or employ the Property, or any other City -owned property, to handle, transport, store or dispose of any hazardous waste or substances, except as authorized by Section 63 to this License, and that it will not conduct any activity at the Property or City -owned property in violation of any applicable Environmental Laws. 46476841;4 25 42. Intentionally Deleted. 43. Time of Essence. It is expressly agreed by the Parties hereto that time is of the essence with respect to this License. If the final day of any period falls on a weekend or legal holiday, then the final day of said period or the date of performance shall be extended to the next business day thereafter. 44. Waiver. Any waiver by either party or any breach by either party of any one or more of the covenants, conditions or provisions of this License shall not be construed to be a waiver of any subsequent or other breach of the same or any covenant, condition or provision of this License, nor shall any failure on the part of the City to require or exact full and complete compliance by Licensee with any of the covenants, conditions or provisions of this License be construed as in any manner changing the terms hereof to prevent the City from enforcing in full the provisions hereto, nor shall the terms of this License be changed or altered in any manner whatsoever other than by written License of the City and Licensee. 45. Litigation. Any dispute herein shall be resolved in the courts of Miami -Dade County, Florida. The Parties shall attempt to mediate any dispute without litigation. However, this is not intended to establish mediation as a condition precedent before pursuing specific performance, equitable or injunctive relief. 46. Attorney(s)' Fees. In the event it becomes necessary to institute legal proceedings to enforce or interpret the provisions of this License, each party shall bear its own attorneys' fees through all trial and appellate levels. 46476841;4 26 47. Waiver of Jury Trial. The Parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this License, or arising out of, under or in connection with this License or any amendment or modification of this License, or any other agreement executed by and between the Parties in connection with this License, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Licensee entering into the subject transaction. 48. Third Party Beneficiary. This License is solely for the benefit of the Parties hereto and no third party shall be entitled to claim or enforce any rights hereunder. 49. No Partnership. Nothing contained herein shall make, or be construed to make any party a principal, agent, partner, affiliate, or joint venture of the other. 50. Further Acts. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by the Parties, the Parties each agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered any and all such further acts, deeds and assurances as may be necessary to consummate the transactions contemplated hereby. 51. Amendments. No alterations, amendments or modifications hereof shall be valid unless executed by an instrument in writing by the Parties with the same formality as this License. Neither this License, nor any term hereof, can be changed, modified, or abandoned, in whole or in part, except by an instrument in writing, and no subsequent oral agreement shall have any 46476841;4 27 validity whatsoever. The City Manager is hereby authorized to execute non -substantive amendments to this License without the necessity of further action by the City Commission. 52. No Interpretation against Draftsmen. The Parties agree that no provision of this License shall be construed against any particular party and each party shall be deemed to have drafted this License. 53. Severability and Savings Clause. It is the express intent of the Parties that this License constitutes a license and not a lease. To further this intent, the Parties agree as follows: (i) if any provision of this License, or the application thereof to any circumstance, suggest that a lease, rather than a license, has been created, then such provision shall be interpreted in the light most favorable to the creation of a license and (ii) if any provision of this License, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than a license, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this License shall not be affected thereby and shall continue to operate and remain in full force and effect. With regard to those provisions which do not affect the Parties intent for this License, should any provision, section, paragraph, sentence, word or phrase contained in this License be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, section, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this License shall remain unmodified and in full force and effect or limitation of its use. 46476841;4 28 54. Invalidity. In the event that any non -material provision of this License shall be held to be invalid for any reason, such invalidity shall not affect the remaining portions of this License and the same shall remain in full force and effect. 55. Headings. Title and section headings are for convenient reference and are not a part of this License. 56. Entire License. This License represents the entire understanding between the Parties hereto as to the subject matter hereof, and supersedes all prior written oral negotiations, representations, warranties, statements or agreements between the Parties hereto as to the same. There are no promises, terms and conditions, or obligations other than those contained herein, and no party has relied upon the statements or promises of the representatives of any party hereto. 57. Authority. Each of the Parties hereto acknowledges it is duly authorized to enter into this License and that the signatories below are duly authorized to execute this License in their respective behalf. 58. Termination of Agreement to Use Riparian Uplands Licensee has entered into a multi -year License Agreement dated or about January 31, 2018 with Resorts World Miami, LLC as owner of the uplands (hereinafter referred to as the "Resorts World License") adjacent to the Property. If at any time during the License Term of this Agreement the Resorts World License is terminated, for whatever reason, the Licensee shall have the right to terminate this Agreement by providing City with 60 days 46476841;4 29 written notice. If this Agreement is terminated as set forth in this Section, any funds paid by Licensee to City shall be forfeited by the Licensee. 59. Intentionally Deleted 60. Responsibility for Damage. If the Property, or any portion thereof, or any structure attached thereto, or any equipment, fixture, or other item contained shall be destroyed, damaged, marred, altered, or physically changed during the term in any manner whatsoever, then Licensee shall be responsible. 61. Copyrights, Trademarks. All federal, state, and local laws and/or regulations related to copyright, trademarks, etc., must be complied with by the Licensee and all exhibitors selling such items on the Property. Further, the Licensee agrees to save and completely hold harmless the City of Miami, and to pay all costs related to any violation of the above. 62. Intentionally Deleted 63. Use of Machinery. Licensee has consent of the City Manager or Director to operate any engine or motor or machinery on the Property or use gasoline, propane, or diesel for mechanical or other purposes. All decorative materials must be flameproof before the same will be allowed in the buildings and should have written verification of such flameproof treatment. 64. Licensee's Employees and Agents. Licensee will furnish any technicians, stagehands, ticket sellers, ticket takers, ushers, security guards, or any other auxiliary personnel at its own cost. 46476841;4 30 65. Emergency Powers to Vacate Property. The City Manager may terminate service of any other utilities upon the Property, order evacuation of all or any portion of the premises, or cause to be removed therefrom any person or group of persons, any materials, equipment or other items if, in his judgment, circumstances of a dangerous or unusual nature have occurred, or he reasonably believes are about to occur, and such action is necessary to secure the safety and welfare of persons and/or property, and Licensee waives any right and/or claim for damages against the City , its agents or servants, in such eventuality. 66. City Manager's Discretion. Any matter not expressly provided for herein shall be within the reasonable discretion of the City Manager. The City Manager will when possible and ultimately at its discretion, consult with Licensee. IN WITNESS WHEREOF, the Parties hereto have caused this License to be duly executed and delivered by their respective officers and hereunto duly authorized as of the date first above written. ATTEST: LICENSEE: YACHTING PROMOTIONS, INC. By: By: Signature Signature of President Print Name Print Name of President By: Signature Print Name 46476841;4 31 ATTEST: Todd B. Hannon City Clerk CITY OF MIAMI, a municipal corporation of the State of Florida Emilio T. Gonzalez, Ph.D. City Manager APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director of Risk Management APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez City Attorney 46476841;4 32 Exhibit A SHOW DATES 2019 Dock & Piling Jan Installation 14 Move in Feb Boats/Tents 6-13 Show Days Feb 14-18 Move out Feb Boats/Tents 19-23 Remove Docks Mar & Pilings 2 46843772;1 EXHIBIT B (WNW �,-'.air• �� MXNEIBEW EITIMISMAGED LASS CM", OF MIAMI EEC ELIBMITNE SAW N.E. 15th 5 . ___ -- ~ Toa• l+T cF- � E17AN CAUSEWAY x�rl N.E. _15th 57REET (BRI7 i37VEN1A _ — — — IJ86 35 jTrE -ar+fv6t~0678F- Zrea:1Da:=T¢T. N�.-tr, BISCAYNE BA);" '.SUBMERGED LAND AREA q = 747,297 SQUARE FEET _ _ -=�= 17.1555i ACRES : �= � =- =' 1 %' CiL6-": .----- \UNUSABLE AREA 90,405 SO FT NOTE.£ 1) THE LANDS SHOW PER DEED 1944Z AGR. ARE INCLUDED IN THE CHAPTER 1 8305 LAND. 2� UNUSABLE AREAS SNOW HEREON AS DETERMINED BY TYE IXIAPPE diO ��� C+Hr pF-NteY PAVES) 3 THIS 15 rsxvrA (BRIDGE) -- ---- ORIGINAL CENTERLINE - EXrENOED EAST N.E. 13th STREET AVM. r (PLAT BOOK PAGE 2. 76. s86 070eW NE 134� 55 V�Y7 hOR RI RICH l-a-WAY La SURVFYGWS +ry �[kPFfrF RaN OF k1PA�'AN FAG+: � i MACARTHUR CAUSEWAY \! II n I 2 I w ' �� le w Iw o I } li -I I Mc-LAUGHLIN ENGINEERING CO. GERTTFICATIDN Certified Correct. Doted at Fort Laud,datc, r-orida this 25(h day of September, 2018. u'£kALD 4 A C.NLNJ egiste-ed Iand uri.elor No. 5263 5'lcte of £loNdo- 46476841;4 34 EXHIBIT "C" TEMPORARY USE AGREEMENT ("TUA") OR LETTER OF AUTHORIZATION FOR SUBMERGED LANDS AREA (THE TUA OR LETTER OF AUTHORIZATION SHALL BE INCORPORATED AS AN EXHIBIT TO THE LICENSE IF USE OF THE PROPERTY REQUIRES ONE AND UPON EXECUTION OF A TUA BETWEEN THE CITY AND TIITF/DEP) 46476841;4 35 EXHIBIT "D" INSURANCE REQUIREMENTS INSURANCE REQUIREMENTS FOR YACHT SHOW AGREEMENT I. Commercial General 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 B. Endorsements Required City of Miami listed as an additional insured Contingent Liability & Contractual Premises/Operations Liability 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 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation 46476841;4 $ 1,000,000 Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit 36 IV. Umbrella Policy (Excess Follow Form including liquor) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $ 10,000,000 Aggregate $ 10,000,000 City of Miami listed as an additional insured V. Marine Operator's Legal Liability and Protection and Indemnity Liability City of Miami listed as an additional insured VI. Excess Marine Operators Legal Liability and Protection and Indemnity Jones Act, if applicable Each Occurrence/Policy Aggregate City of Miami listed as an additional insured VII. Liquor Liability VIII. Hull and Machinery $1,000,000 $10,000,000 $1,000,000 per declared value 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 X" 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. The City reserves the right to request copies of all insurance policies associated with this agreement, including, but not limited to all policy endorsements, and any and all coverage information. 46476841;4 37 EXHIBIT "E" LETTER OF CREDIT CERTIFICATION AND DRAW REQUIREMENTS As provided in Section 8 of this License, Licensee may, at its option, and in lieu of the cash Security Deposit identified above, at any time during the term of this License, deliver to Licensor the Letter of Credit described below. Licensor shall be permitted to draw upon the Letter of Credit at any time Licensee is in default under this License or in the event that the expiration date of the Letter of Credit at any time does not extend to the later of 60 days following the expiration date of this License or any period of holdover by Licensee. The letter of credit (the "Letter of Credit") shall be (1) in the amount of $100,000.00; (2) a clean, irrevocable standby letter of credit issued to Licensor; (3) issued by a federally -insured commercial bank organized under the laws of the United States of America or any state thereof; (4) payable in immediate available funds in full or partial draws upon presentation of the written certification of Licensor as set forth below on this on Exhibit E; (5) by its terms automatically, for the remainder of the License term, renewed for successive one (1) year periods unless the issuer provides no less than sixty (60) days written notice to Licensor that the Letter of Credit shall not be renewed, in which event Licensor shall have the right to draw down the entire amount of the Letter of Credit unless Licensee substitutes, prior to the expiration of the Letter of Credit, a new Letter of Credit which shall meet the requirements hereof or a cash deposit in the amount of $100,000.00. If Licensee defaults in respect of any of the terms, conditions or provisions of this License and Licensee fails to cure any such default after any required notice and within any applicable cure period hereunder or if Licensor receives a notice that the Letter of Credit shall not be renewed or shall expire prior earlier than required herein (i) Licensor shall have the right to require the issuer to make payment to Licensor or its designee of the entire proceeds of the Letter of Credit, and (ii) Licensor may, at the option of Licensor (but Licensor shall not be required to) apply or retain the whole or any part of such sum so paid to it by the issuer to the extent required for the payment of any Use Fee or any other sum as to which Licensee is in default, and any damages to which Licensor is entitled pursuant to the License, whether such damages accrue before or after summary proceedings or other reentry by Licensor, and (iii) Licensor shall hold the remainder of such sum paid to it by the issuer or Licensee, if any, for Licensor's benefit, as security for the faithful performance and observance by Licensee of the terms, covenants, and conditions of this License on Licensee' s part to be observed and performed, with the same rights as hereinabove set forth to apply or retain the same in the event of any further default by Licensee under this License. If Licensor applies or retains any part of the proceeds of the Letter of Credit, Licensee shall, after demand from Licensor, restore the Letter of Credit to its original amount and deliver it to Licensor or its designee (or deliver cash funds to the City in such amount) so that Licensor or its designee shall have the full Letter of Credit on hand at all times during the Term of this License (and any extension). Licensee expressly waives any right it might otherwise have to prevent Licensor from drawing on the Letter of Credit and agrees that an action for damages and not injunctive or other 46476841;4 38 equitable relief shall be Licensee's sole remedy in the event Licensee disputes Licensor's claim to any such amounts. The letter of credit shall contain the following language: FUNDS HEREUNDER ARE AVAILABLE TO YOU AGAINST PRESENTATION OF YOUR SIGHT DRAFT(S), DRAWN ON US, MENTIONING THEREON OUR LETTER OF CREDIT NUMBER . NO OTHER DOCUMENTATION SHALL BE REQUIRED TO DRAW ON THIS LETTER OF CREDIT. DRAWINGS HEREUNDER MAY BE MADE BY PRESENTATION OF BENEFICIARY'S DRAFT(S) TO THE OFFICE IN PERSON, BY MAIL, BY MESSENGER, BY OVERNIGHT COURIER OR BY ANY OTHER MEANS. ALTERNATIVELY, PRESENTATION OF BENEFICIARY'S DRAFT(S) MAY BE MADE BY FAX TRANSMISSION TO [TEL. NUMBER], OR SUCH OTHER FAX NUMBER IDENTIFIED BY { ], N.A. IN A WRITTEN NOTICE GIVEN TO YOU BY RECEIPTED OVERNIGHT COURIER ("NEXT BUSINESS DAY DELIVERY") OR BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUIRED. IF THE REQUISITE DOCUMENTS ARE PRESENTED BY FAX OR BY ANY OF THE OTHER MEANS PROVIDED FOR ABOVE AT THE OFFICE BEFORE THE THEN EXPIRATION OF THIS LETTER OF CREDIT, WE WILL HONOR THE DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT UPON PRESENTATION, AND PAYMENT WILL BE EFFECTED THE SAME DAY IF PRESENTATION IS MADE BEFORE 10:00 AM NEW YORK CITY TIME THAT DAY. IF PRESENTATION IS MADE AFTER 10:00 AM NEW YORK CITY TIME, THEN PAYMENT WILL BE EFFECTED BEFORE THE CLOSE OF BUSINESS OF THE FOLLOWING DAY. AS USED HEREIN `BUSINESS DAY" SHALL MEAN ANY DAY OTHER THAN A SATURDAY OR SUNDAY OR A DAY ON WHICH BANKING INSTITUTIONS IN NEW YORK CITY ARE AUTHORIZED OR REQUIRED TO CLOSE BY LAW. WE HEREBY AGREE TO HONOR EACH DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT IF PRESENTED, AS SPECIFIED, AT OUR OFFICE ON OR BEFORE THE THEN EXPIRATION DATE. WE HEREBY FURTHER AGREE THAT ALL DRAFTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE PAID NOTWITHSTANDING ANY CLAIM BY ANY PERSON THAT THE SUM DEMANDED IS NOT DUE OR THAT SAID DRAFT(S) ARE NOT TO BE HONORED FOR ANY OTHER REASON. IN ADDITION, BENEFICIARY'S RIGHTS AND ABILITY TO DRAW ON THIS LETTER OF CREDIT, TO RECEIVE ALL OR PORTIONS OF THE PROCEEDS HEREOF AND TO USE, APPLY, OR RETAIN THE WHOLE OR ANY PART OF SUCH PROCEEDS, SHALL NOT TAKE INTO ACCOUNT, OR OTHERWISE BE 46476841;4 39 AFFECTED BY, ANY OF THE MODIFICATIONS, REDUCTIONS OR OTHER LIMITATIONS OF OR ON THE APPLICANT'S OBLIGATIONS OR LIABILITIES RESULTING FROM THE VOLUNTARY OR INVOLUNTARY LIQUIDATION, DISSOLUTION, SALE OR OTHER DISPOSITION OF ALL OR SUBSTANTIALLY ALL THE ASSETS, MARSHALING OF ASSETS AND LIABILITIES, RECEIVERSHIP, INSOLVENCY, BANKRUPTCY, ASSIGNMENT FOR THE BENEFIT OF CREDITORS, REORGANIZATION, ARRANGEMENT OR READJUSTMENT OF, OR OTHER SIMILAR PROCEEDING AFFECTING THE APPLICANT, OR THE APPLICANT'S PREDECESSORS, OR THE APPLICANT'S SUCCESSORS OR ASSIGNS, OR ANY OF THEIR ASSETS OR THE DISAFFIRMANCE, REJECTION OR POSTPONEMENT IN ANY SUCH PROCEEDING OF ANY OF APPLICANT'S OBLIGATIONS OR UNDERTAKINGS. SHOULD YOU HAVE OCCASION TO COMMUNICATE WITH US REGARDING THIS LETTER OF CREDIT, PLEASE DIRECT YOUR CORRESPONDENCE TO OUR OFFICE, MAKING SPECIFIC MENTION OF THE LETTER OF CREDIT NUMBER INDICATED ABOVE. "Reference is made to your irrevocable standby letter of credit dated , 201_ in the amount of $ and assigned letter of credit number (the "Letter of Credit"). The undersigned hereby certifies that it is entitled to draw upon the Letter of Credit in accordance with a certain Revocable License between the City of Miami as Licensor, and , as Licensee, dated , 201_. Accordingly, we hereby draw upon the Letter of Credit in the amount of $ . Said funds should be made available to the undersigned in immediately available funds in accordance with the following payment terms: [insert payment instructions]." 46476841;4 40