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HomeMy WebLinkAbout24565AGREEMENT INFORMATION AGREEMENT NUMBER 24565 NAME/TYPE OF AGREEMENT 1000 BRICKELL, LTD DESCRIPTION REVOCABLE LICENSE AGREEMENT/GRANT THE CITY A NONEXCLUSIVE LICENSE FOR ITS USE & OPERATION OF THE PROPERTY AS A PUBLIC PARK FOR THE BENEFIT OF THE RESIDENTS & GENERAL PUBLIC/MATTER ID: 23-2011 K EFFECTIVE DATE August 18, 2023 ATTESTED BY TODD B. HANNON ATTESTED DATE 8/18/2023 DATE RECEIVED FROM ISSUING DEPT. 8/21/2023 NOTE REVOCABLE LICENSE AGREEMENT k 's REVOCABLE LICENSE AGREEMENT (this "Agreement") is made this J day of VAd- 2023 (the "Effective Date"), by and among 1000 BRICKELL, LTD., a Florida limited partnership ("1000 Brickell") and the CITY OF MIAMI (the "City" or "Licensee"), a municipal corporation of the State of Florida (1000 Brickell and the City are collectively, the "Parties"). WHEREAS, 1000 Brickell is the owner of that certain parcel located at northwest intersection of S.E. 10th Street & Brickell Plaza and further described in Exhibit "A" (hereinafter, the "Property"); and WHEREAS, 1000 Brickell wishes to grant the City a nonexclusive license for its use and operation of the Property as a public park for the benefit of the residents of the City and the general public during the term of this Agreement; and WHEREAS, the City wishes operate the Property as a public park during the term of this Agreement consistent with the conditions and requirements set forth hereinbelow. 1. Purposes. 1000 Brickell (hereinafter, the "Licensor") is the owner of the Property. As the Licensor does not anticipate using the Property in the near term, the Licensor has agreed to allow the City the use of the Property exclusively for a public park for the term of this Agreement (the "Permitted Use"). The City shall not permit the Property to be put to any other use other than the Permitted Use. Any use of the Property other than the Permitted Use must be expressly authorized in writing by the Licensor whose consent may be withheld for any reason or no reason. 2. Term. This Agreement shall commence as of the Effective Date and shall continue for a minimum term of eighteen (18) months (the "Initial Term"), renewable thereafter for additional monthly terms, unless earlier terminated by the Parties to this Agreement. 3. Interest Conferred by this Agreement. The City agrees that this Agreement has been issued by the Licensor to authorize the City to use the Property solely for the limited purpose of the Permitted Use. The Parties hereby agree that the provisions of this Agreement do not constitute a lease and the rights of the City hereunder are not those of a tenant, but a mere personal privilege to do certain acts of a temporary character and to otherwise use the Property subject to the terms of this Agreement. No leasehold interest is conferred upon the City under the provisions hereof, and the City shall not claim at any time any leasehold estate or ownership interest by virtue of this Agreement. 4. Use Fee. In consideration for this Agreement, the City agrees to pay the Licensor for the use of the Property an annual use fee of ten dollars ($10.00) per year, which shall be paid on the Effective Date, and the first day of each anniversary of this Agreement, without notice or demand (the "Annual Use Fee"). Payments shall be made payable to "1000 Brickell Ltd." and shall be mailed to address listed for the Licensor hereunder. 5. Termination. This Agreement shall terminate upon the first of the following to occur: a. Termination by Request of Either of the Parties Without Cause. The City may terminate this Agreement without cause (i.e., for any reason or no reason) by providing 1000 Brickell thirty (30) calendar days' written notice. Following the conclusion of the Initial Term, 1000 Brickell may terminate 1 this Agreement without cause (i.e., for any reason or no reason) by providing the City thirty (30) calendar days' notice. In the event of such a termination event, the City shall remove any and all improvements made by the City to the Property during the term of its use, at the City's sole cost and expense, and otherwise vacate the Property on or before the expiration date of the 30-day period. In the event of a holdover by the City beyond the 30-day period, the Licensor may, in addition to and without waiver of any rights or remedies under law, immediately reenter and take possession of the licensed premises with or without process of law. In such event, the City shall, upon demand from the Licensor, reimburse the Licensor for all costs of removing any remaining improvements made by the City to the Property. b. Termination by Express Written Agreement. The Parties may, pursuant to an express written agreement, agree to the termination of this Agreement upon such terms as the Parties find mutually acceptable. c. Termination for Cause. The Licensor, upon delivery of written notice to the City, may terminate this Agreement for cause as of the date of the termination notice provided to the City. A termination "for cause" shall be related to the City's non-performance of any of its duties and obligations required by this Agreement, including, but not limited to: (i) the use of the Property for other than a Permitted Use; and (ii) the City's failure to adequately maintain the Property. 6. Duties of Licensee. In consideration of the Licensor's granting the City the license under this Agreement, the City shall: a. Pay the Annual Use Fee required throughout the term of this Agreement. b. Within ten (10) calendar days of the Effective Date, remove, at the City's sole cost and expense, the security fences erected by the City which currently secure the perimeter of the Property so as to allow for public access. In no event, however, shall the City remove the security fencing until the City has cleaned up the Property and ensured that it is safe for use by the general public. c. Provide for the continuous clean-up of all debris or refuse on the Property whether or not such debris or refuse is caused or created by the City, its employees, agents, guests, invitees, or any member of the general public. d. Perform all repairs, replacements, and customary maintenance to the Property, and any improvements located thereon, necessary to maintain and keep the clean and orderly appearance of the Property. e. Pay for all utilities, including but not limited to, electricity, water, stormwater fees, gas, telephone, garbage, and sewage disposal used by the City during its occupancy of the Property, as well as the costs for installation of any lines and equipment necessary. The City shall, at is sole cost, install all utilities required for its use and install separate utility meters required thereby and shall be billed directly by the applicable utility company for such service. f. Provide for the security and supervision of the Property so as to ensure the safe utilization of the Property by the general public. 2 g. Pay for any and all damages to the Property caused directly or proximately by the City, its employees, agents, guests, invitees, or any member of the general public. h. Throughout the term of this Agreement, the City shall not allow the licensed premises or any part thereof to be used for any immoral or illegal purpose and shall not allow, suffer, or permit the Property to be used for any purpose, business, activity, use, function, or event to which the Licensor objects in writing after the Licensor receives notice of such use. i. At the termination of this Agreement, remove any improvements from the Property not present thereon at the Agreement's inception and return the Property to the Licensor in good condition. 7. Condition of the Property. The City accepts the Property "as is," in its present condition and state of repair without any representation by or on behalf of the Licensor, and agrees that the Licensor shall, under no circumstances, be liable for any latent, patent, or other defects in the Property. The City, at its sole cost, shall maintain the Property in good order and repair at all times and in an attractive, dean, safe, and sanitary condition and shall suffer no waste or injury thereto. The City shall be responsible for all repairs to the Property caused by the City's negligence or willful act. 8. Alternations, Additions or Replacements. Except as otherwise expressly set forth herein, no obstructions shall be erected within the Property so as to preclude or materially hinder its use by Licensee. Except in the event of an emergency, the City shall not make any repair or alteration to the Property unless and until the City shall have caused plans and specifications therefore to be prepared, at the City's sole cost and expense, by an architect or other duly qualified person and shall have obtained the Licensor's written approval for such plans and specifications, which approval may be conditioned or withheld for any reason or no reason whatsoever. The City shall be solely responsible for applying for and acquiring all necessary permits and shall be responsible for any and all costs associated with any alterations, including, but not limited to, design, construction, installation, and permitting costs. 9. Liens and Security Interests. The City, at its expense and with due diligence and haste, shall secure the cancellation or discharge of, or bond off, in any manner permitted by law, all notice of violations arising from or otherwise in connection with the City's use or improvements to the Property. The City shall promptly pay its contractors and material providers for all work and labor provided at the City's request. Should any such lien be asserted or filed, regardless of the validity of said liens or claims, the City shall bond off or discharge the same within fifteen (15) calendar days of City's receipt of notice of such filing of said lien. Should the City fail to discharge or bond off said lien by paying the full amount claimed, the City shall pay the Licensor upon demand any amount paid out by the Licensor, including the Licensor's costs, expenses, and attorney's fees. Nothing contained in this Agreement shall be deemed, construed, or interpreted to imply any consent or agreement on the part of the Licensor to subject its interest or estate in the Property to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, materialman, or supplier thereof against any part of the Property or any improvements thereon and each such contract shall provide that the contractor must insert a statement in any subcontract or purchase order that the contractor's contract so provides for waiver of lien and that the subcontractor, materialman, and supplier agree to be bound by such provision. 3 10. Licensor Access to Property. The Licensor and its authorized representative(s) shall have at all times access to the Property. 11. No Liability. Unless caused by the neglect or willful act or omission of the Licensor, its employees, or agents, in no event shall the Licensor be liable or responsible for any injury, loss, or damage to the Property, improvements, fixtures, and/or equipment belonging to or licensed to the City, its officers, employees, agents, invitees, or patrons occurring in or about the Property that may be stolen, destroyed, or in any way damaged, including, without limitation, by fire, flood, storm, 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, obstruction, leakage, or other defects of any improvement located on the Property, or form any act of God or any act of negligence of any user of the improvements located on the Property or any person whomsoever whether such damage or injury results from conditions arising on the Property or upon other portions of the Property or from other sources. The City further acknowledges that as lawful consideration for being granted the right to utilize and occupy the Property, the City, on behalf of itself, its agents, invitees, and employees, does hereby release from any legal liability the Licensor, its officers, agents, and employees, for any and all claims for injury, death, or property damage resulting from the City's use of the Property. 12. Assignment. The City shall not assign this Agreement or any of its privileges under this Agreement, either voluntarily or involuntarily, without the express written consent of the Licensor. 13. Limitations. The City shall not make, or permit to be made, alterations on or to the Property without the express written approval of the Licensor. 14. Default. If the City is in breach or default of any of the terms and conditions of this Agreement or violates any laws of the United States, State of Florida, or applicable City ordinances, rules, or regulations, and subsequently fails or refuses to perform or correct the conditions constituting the breach or default within five (5) calendar days of written notice of the breach or default, then this Agreement may be terminated consistent with the terms in paragraph 5.c. hereinabove. 15. Governing Law. The Agreement shall be governed by and construed and enforced in accordance with the law of the State of Florida and the ordinances of the City of Miami. 16. Interpretation. The section and paragraph headings set forth in this Agreement are for convenience only, are not part of the Agreement, and are not to be used in construing it. 17. Notices. All notices or other communications which may be given pursuant to this Agreement shall be in writing and shall be deemed properly served if delivered by personal service, by certified mail, or by nationally recognized overnight courier service, addressed to the Licensor and the City at the address indicated herein, as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; if by certified mail, on the fifth calendar day after being posted or the date of actual receipt, whichever is earlier; or if by overnight courier, on the next business day after deposit with such courier. Any notice hereunder may be given on behalf of a party by its legal counsel. 4 LICENSOR 1000 Brickell Ltd. c/o Allen Morris Companies 121 Alhambra Plaza, Ste. 1600 Coral Gables, FL 33134 WITH A COPY TO: Javier E. Fernandez, Esq. SMGQ Law 1200 Brickell Avenue, Ste. 950 Miami, FL 33131 CITY OF MIAMI City of Miami Office of the City Manager 414 S.W. 2nd Avenue, 10th Floor Miami, FL 33130 WITH A COPY TO: City of Miami City Attorney 444 S.W. 2nd Avenue, Ste. 945 Miami, FL 33130 18. Severability. Should any provisions, paragraphs, sentences, words, or phrases contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal, or otherwise unlawful under the laws of the State of Florida, such provisions, paragraphs, sentences, words, or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the Licensor, and in such event, the remaining terms and conditions of this Agreement shall remain unmodified and in full force and effect. 19. 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, claim, 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 a party hereto. This waiver of jury trial provision is a material inducement for the Licensor and the City entering into the subject Agreement. 20. Waiver. No failure on the part of either party to enforce or insist upon performance of any of the terms of this Agreement, nor any waiver of any right hereunder by either party, unless in writing, shall be construed as waiver of any other term or as a waiver of any future right to enforce or insist upon the performance of the same term. 21. Amendments & Modifications. No amendments or modifications to this Agreement shall be binding on either party unless in writing and signed by both Parties. 22. Court Costs and Attorney(s)' Fees. In the event it becomes necessary to institute legal proceedings to enforce the provisions of this Agreement, each party shall bear their own attorney's fees and costs. This provision shall be deemed a separate contract between the Parties and shall survive any default, termination, or forfeiture of this Agreement. 23. Construction. This Agreement is the result of negotiations between and the joint efforts of the Parties and has been typed/printed by one party for the convenience of both Parties. The Parties covenant that this Agreement shall not be construed in favor of or against either of the Parties. 24. Entire Agreement. This instrument and the attachments hereto constitute the sole and only agreement of the Parties hereto regarding the subject matter hereby and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 25. Counterparts/Electronic Signature. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute but one and the same Agreement. The parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other e-mail transmission), which signature shall be binding on the party whose name is contained therein. [SIGNATURE PAGE TO FOLLOW] 6 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement of the day and year first above written. ATTEST: CITY OF MIAMI, icipal corporation of the State of Florida By: Todd B. ' on Arthu'Noriega City Clerk City Manager APPROVED AS TO INSURANCE REQUIREMENTS: By: for Ann -Marie Sharpe, Director Risk Management Department APPROVED AS TO FORM AND CORRECTNESS: B for y: Victoria Mendez City Attorney C1C1 23-2011K WITNESS: LICENSOR: 1000 BRICKELL LTD., a Florida limited Partnership By: By: Signature Signature Print Name Print Name By: Signature Print Name 7 EXHIBIT "A" PROPERTY DESCRIPTION A portion of Lots 7 and 8, Block 72 South, CITY OF MIAMI, according to the plat thereof recorded in Plat Book'B" at Page 41 of the Public Records of Dade County, Florida, being particularly described as follows: Begin at the Southeast corner of said Lot 7; then run Northeasterly along the Southeasterly boundary of said Lots 7 and 8 a distance of 103.66 feet to the most Easterly corner of said Lot 8; thence run Westerly along the North boundary of said Lot 8 a distance of 103.51 feet to a point, said point being 109.56 feet East of the West boundary of said Block 72 South; thence nun Southerly over and across said Lots 7 and 8 along a line parallel to the West boundary of said Block 72 South a distance of 100.00 feet to the point of intersection with the South boundary of said Lot 7; thence run Easterly along the South boundary of said Lot 7 a distance of 76.28 feet to the Point of Beginning, containing an area of 8,000 square feet, more or less. 8