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HomeMy WebLinkAboutExhibit - Right of Entry Permit and License Agreement for Exercise Equipment InstallationRIGHT OF ENTRY PERMIT AND LICENSE AGREEMENT FOR EXERCISE EQUIPMENT INSTALLATION (TRUST FOR PUBLIC LAND - FITNESS ZONES) Licensee: The Trust For Public Land 101 Montgomery Street, 91h Floor San Francisco, California Tel: (850) 222-7911 Licensor: The City of Miami 444 SW 2nd Avenue, 8th Floor Miami, Florida Tel: (305) 416-2154 RECITALS This Right of Entry Permit and License Agreement ("Agreement") for exercise equipment installation is made and entered into between the Trust for Public Land, a California nonprofit corporation ("TPL" or "Licensee") and The City of Miami, a municipal corporation organized under the laws of the State of Florida ("City" or "Licensor"), as of the date of the last party to execute this document, with respect to the following facts: A. City operates and maintains real property consisting of a parcel of land located at the address: 351 Southwest 4th Avenue, Miami, Florida (collectively referred to herein as the "Property) and more particularly described as follows: B. TPL is a national non-profit land conservation organization that has as one its purposes the "Parks for People" program, which assists local communities to build new parks in their neighborhoods; one aspect of the Parks for People program is installation of exercise equipment to provide "Fitness Zones" in local parks for the use of area residents. C. In furtherance of TPL's Parks for People Program, TPL is receiving a Grant from on behalf of The Trust for Public Land (TPL) for construction of a Fitness Zone on the Property (, the "Grant Agreement" ) and has received other sources of funding for the purpose of: (i) purchasing from ("Supplier") exercise equipment ("Equipment") as identified in this Agreement for each Park and (ii) contracting with ("the Installer') for the installation of the Equipment on the Property in accordance with the terms of the Grant Agreements and this Agreement. D. This Agreement constitutes a Right of Entry Permit and License for TPL, Installer and their agents and employees to enter the Property and install the Equipment, and also contains the terms governing TPL's installation of the Equipment and assignment of the warranties thereto to City, and City's acceptance of the Equipment and its warranties and assumption of responsibility following acceptance. E. The Equipment that TPL shall install is identified in Exhibit "A", its specifications are contained in Exhibit "B", and the Equipment installation locations shall be determined in accordance with the Site Plan approved by the City. NOW, THEREFORE, in consideration of the foregoing premises, the parties mutually agree as follows: CONTROLLING AGREEMENT: In the event of any conflict or inconsistency between the terms of this Agreement and the terms of the Grant Agreement, the terms of the Grant Agreement shall control. 2. GRANT OF LICENSE: TPL, its employees, contractors and agents, after execution of this Agreement by the City, is hereby granted a license to access the Property to install the Equipment in accordance with the terms of this Agreement. 3. TERM: This Agreement shall become effective upon full execution and delivery hereof by the parties. This Agreement shall expire on the date upon which City provides a Final Acceptance and Assignment of Warranty Agreement to TPL, accepting the Equipment and Installation on a site-specific basis, as described in Section 10 below, except as may be otherwise provided in this Agreement. In ne event, however, shall the term of this Agreement exceed twelve (12) months, unless mutually agreed upon, in writing, by the parties. Not withstanding any other provision herein, and regardless of the manner or duration of use of said Property by TPL, either party shall have the right to terminate this Agreement, if after giving five (5) business days' notice of the grounds thereof, the other party has failed to cure such grounds or, in the event the nature of the grounds for termination are such that more than five (5) business days is required to effect a cure, if within such five (5) business days the other party has failed to commence such cure and fails to diligently pursue it thereafter. Any notice hereunder to the other party may be given by delivering the same to the other party personally or by mailing the same addressed to the other party at the address herein given for notices. Upon any termination of this Agreement by revocation or otherwise, TPL shall promptly restore the Property to a condition equal to the surrounding area, to the satisfaction of City. In the event of TPL's failure to do so, the City may restore said Property entirely at the risk and expense of TPL. 4. PAYMENTS. TPL will be fully responsible for all payments for the cost of acquisition and delivery of the Equipment, including the Installation in accordance with the terms of this Agreement. 5. CONSTRUCTION MANAGEMENT. TPL will provide general management of construction activity, including but not limited to scheduling construction activity, insuring construction meets the terms of this Agreement and the Grant Agreements, conducting progress meetings, providing meeting minutes and coordinating communications between all parties. City staff will participate in the scheduled progress meetings to keep abreast of construction activity and to insure that work complies with the terms of this Agreement. TPL shall: A. Comply with and abide by all applicable rules, regulations and directions of City. B. Comply with all applicable City ordinances, County, State and Federal laws, and in the course thereof obtain and keep in effect all permits and licenses required to conduct the permitted activities on the Property. C. Licensed activities shall occur during normal business hours, Monday through Friday, at City's sole discretion. Weekend work or work on County holidays is not permitted. TPL's Project Manager, , shall contact , at the City at least two (2) days prior to TPL's initial access to the Property , in regard to all access and permitted activities, and in the event of emergencies. D. Maintain to City's satisfaction the Property and surrounding area in a safe and sound condition, free from danger, injury or threat of harm to the public, and as to prevent the existence of an attractive nuisance. E. Assume the risks and bear all costs of damage or destruction, and loss due to theft, burglary or vandalism to any and all of TPL's equipment, materials, tools, and vehicles owned, hired, leased, or used by TPL for this Agreement, except to the extent that such damage or destruction and loss result from the negligence or willful misconduct of City. F. Field verify utility locations prior to conducting permitted activities and repair or replace any and all park property lost, damaged, or destroyed as a result of, and either directly or indirectly connected with work done pursuant to this Agreement with due diligence and speed. TPL shall promptly notify at the City in the event of damage caused by TPL's activities to any of the Parks, the Parks' equipment, and/or improvements, including landscaped areas. Should TPL fail to promptly make repairs after notice by City of damage, loss or destruction of park property, City may have repairs made and TPL shall pay all costs. G. Provide all safety and security signs, barricades, pedestrian and traffic cones, lights and other related safety fixtures or measures which will forewarn the public of the existence of any hazards related to the licensed activities, and of any detours necessary to prevent vehicular and/or personal injury or property damage accidents due to TPL's activities. H. Bear the sole cost and expense of all work performed by the TPL. 1. Keep a responsible representative on the Property during all work hours. J. Pay for all costs, fees or charges for the application, installation, maintenance, or use of any utilities or services required in the exercise of the permission herein given. 6. REPAIR OF DAMAGE. In addition to TPL's other responsibilities under this Agreement, if TPL becomes aware that any portion of the Property is damaged or threatened by any of the activities of TPL or anyone acting by or through TPL hereunder, with the exception of any disturbance of the Property necessary to install the Equipment, TPL shall promptly notify City of such damage or threat by facsimile or hand delivery. TPL shall remedy any and all such damage or threat and restore the Property to its previous condition, subject to City's approval. 7. INDEMNIFICATION. TPL shall indemnify, defend and hold harmless the City, it's elected and appointed officers, employees and agents (the "City Indemnified Parties") from and against any and all liability, including but not limited to demands, claims, actions, fees, costs and expenses (including attorneys and expert witness fees) arising from or connected with TPL's acts or omissions arising from or related to this Agreement. Following the issuance by City of the Final Acceptance and Assignment of Warranty Agreement pursuant to Section 10 of this Agreement, to the extent allowed by law, the City shall indemnify and save harmless TPL and its officers, agents and employees, and contractors, from any and all liability, including but not limited to demands, claims, actions, fees, costs and expenses (including attorneys' and expert witness fees), and claims thereof for injury to or death of a person or loss of or damage to property, resulting directly or indirectly from any activity or use of the Equipment, except and to the extent where such liability or claim is the direct or indirect result of any act of or any omission to perform some duty imposed by law or agreement on TPL and its officers, agents, and employees, or contractor(s), in which instance, TPL shall defend, indemnify and save harmless City, its officers, agents and employees, and this indemnification by the City shall not constitute a waiver of sovereign immunity beyond the limits set forth in Illinois statutes. The terms of this paragraph shall survive the termination or expiration of this Agreement. Installer must agree to shall indemnify, defend and hold harmless the City, it's elected and appointed officers, employees and agents from and against any and all liability, including but not limited to demands, claims, actions, fees, costs and 4 expenses (including attorneys and expert witness fees) arising from or connected with Installer's acts or omissions arising from or related to this Agreement. 8. GENERAL INSURANCE REQUIREMENTS: Without limiting TPL's indemnification of the City Indemnified Parties, and during the term of this Agreement, TPL shall provide and maintain and shall require Installer to maintain the following programs of insurance specified in this Agreement. Such insurance shall be primary to and not contributing with any other insurance or self- insurance programs maintained by City, and, such coverage shall be provided and maintained at TPL's own expense. A. Evidence of Insurance. Certificate(s) or other evidence of coverage satisfactory to City shall be delivered to the City Department of Parks and Recreation prior to commencing services under this Agreement. Such certificates or other evidence shall.- i. hall: i. Specifically identify this Agreement. ii. Clearly evidence all insurance required in this Agreement. iii. Contain the express condition that the City is to be given written notice by mail at least thirty (30) days in advance of cancellation for all policies evidenced on the certificate of insurance. iv. Include copies of the additional insured endorsement to the commercial general liability policy, adding the City Indemnified Parties as additional insured for all activities arising from this Agreement. B. Insurer Financial Ratings. Insurance is to be provided by an insurance company acceptable to the City, with an A.M. Best rating of not less than A: VII, unless otherwise approved by the City. C. Failure to Maintain Coverage. Failure by TPL to maintain the required insurance, or to provide evidence of insurance coverage acceptable to City, shall constitute a material breach of this Agreement upon which the City may immediately terminate or suspend this Agreement. D. Notification of Incidents, Claims or Suits. TPL shall report to City: i. Any accident or incident relating to services performed under this Agreement which involves injury or property damage which may result in the filing of a claim or lawsuit against TPL and/or City. Such report shall be made in writing within 24 hours of occurrence. ii. Any third party claim or lawsuit filed against TPL arising from or related to services performed by TPL under this Agreement. iii. Any injury to a TPL or sub -contractor employee, which occurs on the Property. iv. Any loss, disappearance, destruction, misuse, or theft of any kind whatsoever of City property, monies or securities entrusted to TPL under the terms of this Agreement. E. Compensation for City Costs. In the event that TPL fails to comply with any of the indemnification or insurance requirements of this Agreement, and such failure to comply results in any costs to City, TPL shall pay full compensation for all costs incurred by City. F. Insurance Coverage Requirements for Contractors. TPL shall ensure any of its contractors performing services under this Agreement meet the insurance requirements of this Agreement by either: i. Providing evidence of insurance covering the activities of contractors, or ii. Providing insurance certificates and additional insured notices submitted by contractors evidencing that contractors maintain the required insurance coverage. City retains the right to obtain copies of evidence of contractor's insurance coverage at any time. 9. INSURANCE COVERAGE REQUIREMENTS: A. General Liability insurance (written on ISO policy form CG 00 01 or its equivalent) with limits of not less than the following: General Aggregate: $2 million Products/Completed Operations Aggregate: $1 million Personal and Advertising Injury: $1 million Each Occurrence: $1 million B. Automobile Liability insurance (written on an ISO policy form or its equivalent) with a limit of liability of not less than $1 million for each accident. Such insurance shall include coverage for all "owned," "hired" and "non -owned" vehicles, or coverage for "any auto". C. Workers Compensation and Employers' Liability insurance, providing workers compensation benefits, as required by the State of Florida or by any other state, and for which TPL is responsible. In all cases, this insurance also shall include Employers' Liability coverage with limits of not less than the following: Each Accident: $1 million Disease — policy limit: $1 million Disease — each employee: $1 million 10. FINAL ACCEPTANCE AND ASSIGNMENT OF WARRANTY: A. TPL, as it completes installation of the fitness zone equipment at the Property, shall notify City that it is ready to have the installation inspected by City. Within ten (10) City business days of receipt of said notice, City shall inspect the installation and reasonably determine whether the installation has been installed in accordance with this License and to a level of quality and workmanship for City to issue its Final Acceptance and Assignment of Warranty Agreement.. If the installation is unacceptable, within ten (10) City business days after inspection, City shall provide TPL with a list of items that need to be corrected in order for City to issue its Final Acceptance and Assignment of Warranty Agreement, or issuance of said Final Acceptance will be delayed until the items on the list are corrected. B. Upon issuance of the Final Acceptance and Assignment of Warranty Agreement, TPL shall obtain the consent of the manufacturer of the Equipment for assignment to City and assign any and all warranties it received from the manufacturer of the Equipment, in the Final Acceptance and Assignment of Warranty attached hereto as Exhibit C. TPL shall provide a copy of the invoice for the Equipment in order to make claims under the terms of said warranty. C. The Final Acceptance and Assignment of Warranty Agreement shall confirm that the City assumes and accepts liability for the use of the Equipment as well as responsibility for the maintenance, removal or replacement of the Equipment and adherence with any additional requirements set forth in the Grant Agreement, and assumes TPL's responsibilities under the Grant Agreement with respect to the subject Property. D. The Installer shall be solely responsible to secure the site and maintain the construction fence until TPL receives the City's Acceptance Agreement. Provided, however, if the City removes, or authorizes removal of the construction fence and makes the Equipment available for public use prior to the City executing the Final Acceptance and Assignment of Warranty Agreement , the City will be deemed to have accepted the equipment. 11. NOTICES: Notices desired or required by this Agreement or by any law now or hereinafter in effect are deemed given when sent by U.S. Postal Service Certified Mail or by a reliable over -night courier with postage or charges prepaid to TPL as follows: Brenda McClymonds, Project Manager The Trust for Public Land Tel: or such other place in Florida as may hereinafter be designated in writing by TPL. Notices, Certificates of Insurance and/or Self -Insurance and envelopes containing the same to City shall be addressed to: 12. INTENTIONALLY OMITTED. 13. INDEPENDENT STATUS: This Agreement is by and between City and TPL. It is not intended and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture or association as between City and TPL. TPL understands and agrees to bear the sole responsibility and liability for furnishing Workers' Compensation benefits to any person for injuries arising from or connected with services performed on behalf of TPL pursuant to this Agreement. 14. EMPLOYEES: All references to "TPL" herein are deemed to include the employees, agents, Installer and subcontractors of any tier, and anyone else required under written contract with the TPL to access the Property. 15. LIMITATIONS: It is expressly understood that in permitting the right to use the Property, no estate or interest in real property is being conveyed to TPL, and that the right to use is only a nonexclusive, revocable and unassignable permission to use the Property in accordance with the terms and conditions of this Agreement. 16. AMENDMENTS: The Property, permitted use and term, may be amended during the term of this agreement, upon TPL's prior written request to City, subject to the Director's discretion. 17. ASSIGNMENT: This Agreement is personal to TPL, and in the event TPL shall attempt to assign or transfer the same in whole or part, City shall have the option to terminate all rights hereunder immediately. 18. AUTHORITY TO STOP: In the event that an authorized representative of the City finds that the activities being held on the Property unnecessarily endanger the health or safety of persons on or near said Property, the representative may require that this Agreement immediately be suspended until said endangering activities cease, or until such action is taken to eliminate or prevent the endangerment. 19. ALTERATIONS AND IMPROVEMENTS: TPL has examined the Property and knows the condition thereof, TPL accepts the Property in the present state and condition and waives any and all demand upon the City for alteration, repair, or improvement thereof. All improvements to the Property installed by TPL shall remain upon termination of this Agreement and become the property of City. 20. TRANSFER OF OPERATING RESPONSIBILITY/CLOSURE: In the event the City transfers operating responsibility of a Park and the licensed Property to a newly formed or existing governmental agency, this Agreement shall terminate on the date of said transfer to such agency, unless that agency agrees to assume this Agreement. City agrees to use its best efforts to obtain said assignment in the event the City transfers its operating responsibility for a Park to a newly -formed or existing governmental agency. In the event the City closes a Park, this Agreement shall terminate upon the effective date of such closure. County shall provide written notice to TPL immediately upon any consideration by the City of the possibility of transferring or closing a Park. City shall provide TPL with as much prior written notice of any such transfer or closure of a Park as reasonably possible, but in no case less than ten (10) City business days, before the effective date of any such transfer or closure. TPL shall be permitted to continue operations on the licensed Property for the remaining portion of the year in which it receives any such notice specifying the effective date of the transfer or closure of a Park. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above. AUTHORIZED REPRESENTATIVE: Name: Title: Date: CITY OF MIAMI, a municipal Corporation of the State of Florida The Trust For Public Land 101 Montgomery Street, 9th Floor, San Francisco, California a California not-for-profit corporation ATTEST: Name: Title: Corporate Seal: ATTEST: Daniel J. Alfonso Date: Todd Hannon City Manager City Clerk APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney 10 Date: Date: Date: Exhibit A Fitness Eauipment List Exhibit B Equipment Specifications (To be provided as separate attachments) 12 Exhibit C Final Acceptance and Assignment of Warranty Agreement Date RE: FINAL ACCEPTANCE AND ASSIGNMENT OF WARRANTY AGREEMENT Dear This Final Acceptance and Assignment of Warranty Agreement ("Final Acceptance and Assignment") is made with reference to that certain Warranty Certificate ("Warranty") (attached hereto as Exhibit A) issued by for equipment purchased by The Trust for Public Land ("TPL") in connection with TPL's Fitness Zones project (the "Equipment"). In connection with the City of Fairview's (the "City") acceptance of the Equipment, which is hereby acknowledged by execution of this Final Acceptance and Assignment, installed at , owned/managed by the City, TPL, as purchaser of the equipment is hereby assigning the Warranty to the City. The City hereby accepts this assignment and agrees to assume full responsibility for the maintenance, repair, replacement, operation of and liability for the Equipment and its use, pursuant to the terms of the Right of Entry Permit and License Agreement for Exercise Equipment Installation at in Illinois. The City has delivered to TPL a fully executed Right of Entry Permit and License Agreement for Exercise Equipment Installation. Such delivery, along with City's signature below, shall constitute City's Final Acceptance of the Equipment and installation and the City's agreement to abide by the terms of the Warranty. ASSIGN0R- The Trust for Public Land, a California nonprofit corporation By: Name: Title: I',[.` areuma City of Fairview AGREED TO AND ACCEPTED BY: By: Name: Title: ATTEST: By: 13 Exhibit C Exhibit A to Assianment of Warra Warranty Certificate (To be provided) 14