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HomeMy WebLinkAboutExhibit - AgreementREVOCABLE LICENSE ISSUED BY THE CITY OF MIAMI TO MAMBO CAFE FOR THE OCCUPANCY AND USE OF CITY -OWNED PROPERTY LOCATED AT 401 Biscayne Boulevard N215 Miami, Florida 33132 (MIAMARINA) TABLE OF CONTENTS RECITALS ARTICLE I USE OF PREMISES Section 1.1 Purpose Section 1.2 Occupancy and Use Period Section 1.3 Interest Conferred By This License Section 1.4 No Assigrunent or Transfer Section 1.5 Ownership of Improvements ARTICLE II USE FEE & FINANCIAL RECORDS Section 2.1 Occupancy & Use Fee Section 2.2 Late Fee Section 2.3 Manner of Payment ARTICLE III CONDITION, REPAIR & ALTERATIONS Section 3.1 Condition of the Premises Section 3.2 Alterations, Additions or Replacements Section 3.3 Violations, Liens and Security Interests Section 3.4 Installation of Artwork ARTICLE IV ACCESS Section 4.1 City Access to Facility Section 4.2 Public Access to Water ARTICLE V INSURANCE & INDEMNIFICATION Section 5.1 Insurance Section 5.2 Indemnification and Hold Hannless Section 5.3 No Liability ARTICLE VI DEFAULT & TERMINATION Section 6.1 Termination without Cause Section. 6.2 Termination by City Manager for Cause Section 6.3 Default by User Section 6.4 Surrender of Premises Section 6.5 Tennination/Hiatus for the Miami International Boat Show ARTICLE VII MISCELLANEOUS Section 7.1 Hazardous Materials Section 7.2 Taxes and Fees Section. 7.3 Notices Section 7.4 Advertising Section 7.5 Severability Section 7.6 Nondiscrimination Section 7.7 Waiver of Jury Trial ii Section 7.8 Non -waiver of Violation Section 7.9 Amendments and Modifications. Section 7.10 Compliance with Applicable Laws Section 7.11 Captions Section 7.12 Governing Law & Venue Section 7.13 Interpretation Section 7.14 Entire License EXHIBITS EXHIBIT A PREMISES — LEGAL DESCRIPTION & SKETCH EXHIBIT B CONDITIONS OF USE FOR OCCUPANCY EXHIBIT C INSURANCE REQUIREMENTS EXHIBIT D CORPORATE RESOLUTION AND UPDATED CORPORATE STATUS OF USER iii REVOCABLE LICENSE THIS REVOCABLE LICENSE ("License") is made this day of , 2015 by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida ("City") and CROCODILE CANTINA, INC. D/B/A MAMBO CAFE, a Florida corporation having its offices at 401 Biscayne Boulevard, Suite 119, Miami, Florida 33132 ("User"). The City and User, (together the "Parties") hereby recite; RECITALS WHEREAS, the City is owner in fee simple of the property located at 401 Biscayne Boulevard, N215, Miami, Florida 33132 ("Miainarina") as more specifically indicated in Exhibit A ("Premises"); WHEREAS, the User owns and operates a. restaurant at Bayside Marketplace, the location of which borders the Premises; WHEREAS, the User has inquired about using a defined area consisting of, approximately, one hundred forty-four (144) square feet of the Premises to expand its seating area for the purpose of dockside, restaurant seating; WHEREAS, it is the mutual desire of the Parties that the Premises be used by the User temporarily by means of this License, which is revocable -at -will by the City and without the consent of User; WHEREAS, this License does not transfer any interest in the Premises including any leasehold interest in subject :Premises owned by the City; does not confer a right to use the Premises for any purposes that are not specified herein; and does not convey or transfer any right to exclude the City from the Premises; NOW THEREFORE, in consideration of the foregoing and the mutual promises hereinafter set forth, and in order to carry out the intent of the Parties as expressed herein, City and User agree as follows: ARTICLE I USE OF PREMISES 1.1 Purpose The City is the owner of real Premises located at 401 Biscayne Boulevard, N215, Miami, Florida. 33132. The User wishes to use the Premises, as indicated in Exhibit A, for dockside, restaurant seating, including, but not limited to, the daily setting up and breaking down of tables, chairs, maintenance in support thereto, as well as the service of food and beverages. ("Permitted Uses"). The City shall authorize the User to occupy anduse the Premises for the abovementioned Perinitted Uses, under the conditions hereinafter set forth, and further subject to compliance with M all applicable laws, rules, regulations, permits, licenses and similar approvals, and for no other purpose or use of any kind. Any use of the Premises that is not authorized under the Permitted Uses must receive the prior written consent of the City Manager, which consent may be withheld or conditioned for any or no reason, including, but not limited to, additional financial consideration. 1.2 Occupancy and Use Period This License is effective as of the earlier of. ("Effective Date") and shall expire on (a) Tennination by the express tenns of this License; or (b) Termination by request of either of the Parties hereto, subject to the notice provisions of Section 6.1, "Termination Without Cause"; (c) Tennination pursuant to Section 6.2, "Termination by City Manager for Cause"; or, (d) Termination pursuant to Section 6.5. Except as otherwise set forth in this License, the User will operate the Premises a minimum of fifty (50) hours per week, except in cases of Force Majeure or any reasonable period of remodeling, repair or reconstruction of the Premises, which remodeling, repair or reconstruction must be approved by the City Manager in writing prior to commencement, and which may not exceed thirty (3 0) days without additional written approval. by the City Manager. 1.3 Interest Conferred By This License User agrees that this License has been issued by the City to authorize User to occupy the Premises solely for the limited purpose of the Pennitted Use and no other purpose or uses. The Parties hereby agree that the provisions of this License do not constitute a lease and the rights of User hereunder are not those of a tenant but are a mere personal privilege to do certain acts of a temporary character and to otherwise use the Premises subject to the terms of this License. No leasehold interest in the Premises is conferred upon User under the provisions hereof and User does not and shall not claim at any time any leasehold estate or ownership interest in the Premises by virtue of this License or its use of the Premises hereunder. Additionally, User does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the Premises by virtue of any expenditure of funds by the User for improvements, construction, repairs, partitions, or alterations to the Premises even if such improvements, construction, repairs, partitions, or alterations are authorized by the City. 1.4 No Assignment or Transfer User may not assign or transfer this License or any portion of any privilege of occupancy and/or use granted by this License. 1.5 Ownership of Improvements As of the Effective Date andthroughout the Occupancy and Use Period, title to the Premises and all improvements thereon shall be vested in City. Furthennore, title to all E Alterations made in or to the Premises, whether or not by or at the expense of User, shall, unless otherwise provided by written License, immediately upon their completion become the Preinises of the City and. shall remain and be surrendered with the Premises, ARTICLE II USE FEE & FINANCIAL RECORDS 2.1 Occupancy & Use Fee In consideration of this License, commencing on the Effective Date, User agrees to pay a. use fee ("Monthly Use Fee") to the City of two hundred seventy dollars ($270.00), subject to annual four percent (4%) increases, plus State Use Tax, if applicable, for each month or any portion thereof that User uses or occupies the Premises. 2.2 Late Fee In the event City does not receive any installment of the Monthly Use Fee within five (5) days of the date in which it is due, User shall pay to the City a late charge in an amount equal to five percent (5%) of the unpaid fee. Such late fee shall constitute additional fees due and payable to the City by User upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by the City shall in no event, constitute a waiver of User's violations with respect to such overdue amount, nor shall it prevent the City from the pursuit of any remedy to which the City may otherwise be entitled. 2.3 Manner of Payinent The Monthly Use Fee shall be paid in advance and. in fiill on the first day of each month without notice or demand. User shall pay the City the Monthly Use Fee to the City at the address noted below: City of Miami Department of Real Estate and Asset Management Attention: Lease Manager 444 SW 2nd Avenue, 3rd. Floor. Miami, Florida 33130 ARTICLE III CONDITION, REPAIR & ALTERATIONS 3.1 Condition of the Premises User accepts the Premises "As Is", in its present condition and state of repair and without any representation by or on behalf of the City, and agrees that. the City shall, under no circumstance, be liable for any latent, patent or other defects in the Premises. User, at its sole cost, shall maintain the Premises in good order and repair at all times and in an attractive, clean, safe and sanitary condition and shall suffer no waste or injury thereto. User shall be responsible for all repairs to the Premises required or caused by User's use of any part thereof. on User. agrees to make all changes necessary to the Premises at User's sole cost and expense in order to comply with all City, County, State and Federal requirements for User's use or occupancy thereof. Additionally, User agrees to maintain the Premises at its own cost and expense in accordance and in compliance with the terms and conditions specified in Exhibit B attached hereto and made a part hereof. 3.2 Alterations, Additions or Rpplacements Except in the event of an emergency, and in the case of the conditions and requirements specified in Exhibit B, User shall not make any repair or alteration required or permitted to be performed by User without first receiving the written approval of the City Manager, which approval. may be conditioned or withheld for any or no reason. If the City approves such request, no repair or alteration shall be commenced until plans and. specifications shall have been submitted to and approved by the City Manager.. User acknowledges that any approval given by the City Manager pursuant to this Section shall not constitute an opinion or License by the City that the plans and specifications are structurally sufficient or in compliance with any laws, codes or other applicable regulations In the event of an. emergency, User may reasonably proceed to perforin such repair work and shall immediately notify City of such work. 3.3 Violations, Liens and Security Interests User, at its sole expense and with due diligence and dispatch, shall secure the cancellation, discharge, or bond off, in the manner permitted by law, of all notices of violations arising from, or otherwise connected with, User's improvements, use, occupancy, or operations in the Premises which shall be issued by any public authority having or asserting jurisdiction. User shall promptly pay its contractors, subcontractors, and material -men for all work and labor done at User's request. Should any lien, claim, or encumbrance be asserted or filed, User shall bond against or discharge the same regardless of validity, within ten (10) calendar days of User's receipt of notice of the filing of said lien, claim, or encumbrance. In the event User fails to remove or bond against said lien or claim in the full amount stated, the City without obligation to do so, may bond, settle, or otherwise remove such lien or claim and User shall pay the City upon demand. any amounts paid out by City to extinguish such claim or lien, including City's costs, expenses, and reasonable attorneys' fees. User further agrees to hold City harmless from and to indemnify the City against any and all claims, demands and expenses, including attorneys' fees, of any contractor, subcontractor, material person, laborer or any other third person with whom User has contracted or otherwise is found liable, in respect to the Premises. Nothing contained in this License shall be deemed, construed or interpreted to imply any consent or License on the part of City to subject the City's interest or estate to any liability under any mechanic's or other lien asserted by any contractor, subcontractor, material person or supplier against any part of the Premises or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other Licenses involving the Premises shall provide for the waiver of any lien rights in the Premises and provide that the User agrees to be bound by such provision and include the waiver provision in any sub -License. 7 3.4 Installation of Artwork In accordance with Miami 21 and Section 62 of the City Code, the User may apply for a mural permit. The City Manager or designee shall be responsible for the approval of all mural pen -nits. ARTICLE IV ACCESS 4.1 City Access to FacilitX The City and its authorized representative(s) shall at all times have access to the Premises. The City shall have access to and entry into the Premises at any time to (a) inspect the Premises, (b) to perform any obligations of User hereunder which User has failed to perform after written notice thereof to User, with User not having cured such matter within ten _(10) calendar days of such notice, (c) to assure User's compliance with the terns and provisions of this License and all applicable laws, ordinances, rules and regulations, (d) to show the Premises, to prospective purchasers or tenants, and (e) for other purposes as may be deemed necessary by the City Manager in the furtherance of the City's corporate purpose; provided, however, that City shall make a diligent effort to provide at least 24 -hour's advanced notice and User 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 User by reason of the City's exercise of the right of entry described herein for the purposes listed above. The making of periodic inspection or the failure to do so shall. not operate to impose upon the City any liability of any kind whatsoever nor relieve the User of any responsibility, obligations or liability assumed under this License. 4.2 Public Access to Water User recognizes that members of the public have a right to boat upon and otherwise lawfully enjoy the navigable waters of the Premises and have a right to access these waters from the Premises, so hong as they create no obstruction to access for the User or lawful visitors to the Premises. User agrees to take no action which hinders, impedes or interferes with access by lawful Premises visitors to waterways and use of public beaches, shores, or ramps and such rights. The Parties recognize that at times, unlawful access to the Premises may occur. In the event unauthorized access occurs the City will take iinmediate action and institute reasonable measures designed to protect the Premises and visitors to the Premises. ARTICLE V INSURANCE & INDEMNIFICATION 5.1 Insurance Prior to User, its agents, employees, representatives, contractors, subcontractors, consultants or anyone else directly or indirectly employed by any of them entering upon the Premises for the purpose of performing the Permitted Uses as defined herein, the User shall obtain and maintain or cause to be obtained and maintained throughout the Occupancy and Use Period, the types and amounts of insurance coverages set forth in Exhibit D, attached hereto and made a part hereof, in such reasonable amounts as approved by the City's Risk Management Director protecting the City, against all claims for personal injury, bodily injury, Premises damage, and regulatory actions by govei-iu-zental agencies arising out of or related to the activities undertaken by the User upon the Premises and naming the City as an additional insured. All policies and/or certificates of insurance are subject to review and verification by the City's Risk Management Department prior to insurance approval. The City's Risk Management Department reserves the right to make reasonable changes in the types and amounts of insurance coverages as necessary and shall revise Exhibit D accordingly as necessary. The User shall be responsible for assuring that the insurance certificates required under this License remain in full force and effect for the duration of this License, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this License and any extension hereof, User shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Administrator at a minimum of ten (10) calendar days in advance of such expiration(s). In the event expired certificates are not replaced with new or renewed certificates which cover the Occupancy and Use Period: (i) the City shall suspend this License until such time as the new or renewed cei-tificate(s) are received in acceptable form by the City's Risk Management Director; or (ii) the City may, at its sole discretion, terminate the License for cause and seek appropriate remedies in conjunction with the violation of the terms and conditions of this License. Compliance with the foregoing insurance requirements shall not relieve User of its liabilities and obligations under this License. User shall require as well its construction contractors, subcontractors, and vendors for the Project that come onto the Premises to furnish the User and the City, evidence of the following insurance coverage, unless this requirement is waived in writing by the City Manager. The User's failure to require third parties to procure insurance shall in no way release the User from its obligations and responsibilities as provided. Failure to require third parties to procure insurance required by this Section shall constitute a cause for default of this License. Any insurance proceeds recovered on account of any damage or destruction to the Premises shall be made available for the payment of the cost of the reconstruction, replacement or repairs. All of the insurance proceeds plus the amount of any deductible applicable to said damage or destruction shall be deposited by the insurance company or by the User (in the case of the deductible) with an escrow agent reasonably acceptable to the City Manager, with instructions to the escrow holder that the escrow holder shall disburse the funds to the User, with notice thereof to the City, as the work of the reconstruction, replacement or repairs progresses, upon submission of certificates of the architect or engineer supervising the work, that the disbursements then requested, plus all previous disbursements made from such insurance proceeds, plus the amount of any deductible, do not exceed the cost of the work already completed and paid for, and that the balance in the escrow fund is sufficient to pay for the reasonably estimated cost of completing the required work. If the amount of the insurance proceeds is less than the cost of the required work, then User shall pay the excess cost; and if the 0 amount of the insurance proceeds is greater than the cost of the required work, then the excess shall be paid to the City. If it can be determined that any loss or part thereof, shall be the fault of a third party (i.e, a contractor or contractors, visitors to the building or any other person, persons or organizations) other than the City, their and in that event, User may take all necessary actions to cause such third party to pay such costs and the User shall be responsible for the restoration of any and all losses incurred. by the third party. In no event shall the City be liable for damage caused to the Premises or Properties by fire or other casualty. If a third party or parties are not found liable; or, if found liable, but unable to pay damages, then the costs of such repairs shall be ascribed to the User. 5.2 Indemnification and Hold Harmless The User shall indemnify, hold harmless and defend the City from and against any and all claims, suits, actions, damages or causes of action of whatever nature, for any personal injury, loss of life or damage to Premises sustained in or on the Premises, by reason of or as a result of User's use or operations thereon, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof; even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents or officials. Further., User shall indemnify, defend and hold City harmless from and against any and all claims actions, damages, liability and. expense arising from or caused by the presence, in or about the Premises, of any Hazardous Materials placed on or about the Premises by User, or its agents, employees or assignees, or at User's direction, or by User's failure to comply with all applicable Environmental Laws. 5.3 No Liability In no event shall the City be liable or responsible for injury, loss or damage to the Premises, improvements, fixtures and/or equipment belonging to or rented by User, its officers, agents, employees, invitees or patrons occurring in or about the Premises 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 Premises, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires,. appliances, plumbing, air conditioning or lighting fixtures of the Premises, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Premises or any person whomsoever whether such damage or injury results from conditions arising upon the Premises or from other sources. User indernnifies the City its officers, agents and employees from and against any and all such claims even if the claims, costs, liabilities, suits, actions, damages or causes of action arise from the negligence or alleged negligence of the City, including any of its employees, agents, or officials. User further acknowledges that as lawful consideration for being granted the right to utilize and occupy the Premises, User, on behalf of himself or herself, agents, invitees and 10 employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or Premises damage resulting from User's use of the Premises. ARTICLE VI DEFAULT & TERMINATION 6.1 Termination without Cause Either party may terminate this License at any time by giving thirty (30) calendar days written notice to the non-tenminating party prior to the effective date of the termination ("Notice Period"). Neither party shall have any recourse against the other for a termination effectuated pursuant to this Section, as it is understood and agreed that this termination is for convenience, without cause and without recourse. 6.2 Tennination by City Manager for Cause If, at the sole and complete discretion of the City, User in any manner violates the restrictions and conditions of this License, then, and in such event, after ten (10) calendar days written notice given to User by the City Manager within which to cease such violation or correct such deficiencies, and upon failure of User to do so after such written notice within said ten (10) day period, this License shall be automatically terminated. without the need for further action by the City. 6.3 Default by User In the event that User fails to cease such violation or correct such deficiencies of which notice has been provided and to peacefully surrender the Premises at the expiration of the Notice Period provided in Section 6.1 "Termination Without Cause;" or as provided in Section 6.2, "Termination by City Manager For Cause," after delivery of a Notice of Termination of the License by the City ("City Notice"), the User shall have defaulted, and the City shall have all remedies available to it at law or in equity. 6.4 Surrender of Premises In event of tennination pursuant to Section 6.1, "Termination without Cause," or Section 6.2, "Tennination by City Manager for Cause," at the expiration of the Notice Period, User shall peacefully surrender the Premises, broom clean and. in good condition and repair together with all alterations, fixtures, installations, additions and improvements which may have been made in or attached on or to the Premises. Upon surrender, User shall promptly remove, from the Premises, all its personal property, trade fixtures, and equipment, and User shall repair any damage to the Premises caused. thereby. Should User fail to repair any damage caused to the Premises within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Premises to be repaired at the sole cost and expense of User. User shall pay to the City the full cost of such repairs within five (5) calendar days of receipt of an 11 invoice indicating the cost of such required repairs. At the City's option, City may require User, at User's sole cost and expense, to restore the Premises to a condition acceptable to the City. In the event User fails to remove its personal property, equipment, and fixtures from the Premises within the time limit set by the notice, said Premises shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as City deems fit, all at User's sole cost and expense. 6.5 Tenuination/Hiatus for the Miami International Boat Show In the event the City impedes the User's use of the Premises due to the Miami International Boat Show (the `Boat Show"), User shall be entitled to the following option: (i) If the Boat Show materially obstructs or otherwise prevents User's dockside, restaurant seating, payment of rent shall be abated by a pro -rated, daily amount based upon the Monthly Use Fee described in Section 2. 1, above. Minor construction andwork surrounding the subject Premises shall not be considered part of the Boat Show as it is used within this section. The City shall provide User with notice of the Boat Show's use of the Premises, once known. ARTICLE VII MISCELLANEOUS 7.1 Hazardous Materials The User shall, at its sole cost and expense, at all times and in all respects comply with all federal, state and local laws, statutes, ordinances and regulations, rules, rulings, policies, orders, administrative actions and administrative orders ("Hazardous Materials Laws"), including, without limitation, any Hazardous Material Laws relating to industrial hygiene, environmental protection or the use, storage, disposal or transportation of any flammable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or "Toxic Substances, under any such laws, ordinances or regulations (collectively "Hazardous Materials"). The User shall, at its sole cost and expense, procure, maintain in effect, and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals relating to the presence of Hazardous Materials within, on, under or about the Premises required for the User's use, or storage of, any Hazardous Materials in or about the Premises in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this License, the User shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Premises by the User or at the User's direction, to be removed from the Premises and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. The City acknowledges that it is not the intent of this Article to prohibit the User from operating in the Premises for the uses described in the Section of this License entitled "Purpose". The User may 12 operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this Section of the License shall survive the expiration or termination of this License. 7.2 Taxes and Fees User shall pay before any fine, penalty, interest or cost is added for nonpayment, any and all charges, fees, taxes or assessments levied against the Premises, or against any occupancy interest or personal Premises of any kind, owned by or placed in, upon or about the Premises by User, including, but not limited to, ad valorem taxes, fire fees, and parking surcharges. In the event User appeals a tax or fee, User shall immediately notify City of its intention to appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent of the contested tax. together with all interest, costs and expenses, including reasonable attorneys' fees, expected to be incurred. 7.3 Notices All notices or other communications which may be given pursuant to this License shall be in writing and shall be deemed properly served if delivered by personal service or by certified mail addressed to City and User at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served; or if by certified mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier: CITY OF MIAMI City of Miami Office of the City Manager 444 SW 2nd Avenue, 10t Floor Miami, Florida 33130 WITH A COPY TO: City of Miami USER Mr. Emilio Cajella Crocodile Cantina. d/b/a Mambo Cafe 401 Biscayne Boulevard, Suite 119 Miami, Florida 33131 Department of Real Estate and Asset Management 444 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 7.4 Advertising User shall not permit any sighs, decoration, or advertising matter to be placed either in the interior or upon the exterior of the Premises without having first obtained the approval of the Director of Real Estate and Asset Management. ("Director") or his/her designee, which approval may be withheld for any or no reason, at his or her sole discretion. User shall, at its sole cost and expense, install., provide, maintain such sign, decoration, advertising smatter or other things as maybe permitted hereunder in good condition and repair at all times. User must further obtain 13 approval from all goven-nnental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the cancellation of this License, User shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Premises. If any part of the Premises is in any way damaged by the removal of such items, said damage shall be repaired by User at its sole cost and expense. Should User fail to repair any damage caused to the Premises within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Premises to be repaired at the sole cost and expense of User. User shall pay City the full cost of such repairs within five (5) days of receipt of an invoice indicating the cost of such required repairs. User hereby understands and agrees that the City may, at its sole discretion, erect or place upon the Premises an appropriate sign indicating City's having issued this License. 7.5 Severability Should any provisions, paragraphs, sentences, words or phrases contained in this License be deterinined by a court of competent jurisdiction to be invalid, illegal or otherwise unlawful, such provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws, and the same may be deemed severable by the City, and in such event, the remaining terms and conditions of this License shall remain unmodified and in full force and effect. It is the express intent of the parties that this License constitutes a revocable 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 deterinined 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. 7.6 Nondiscrimination The Premises shall be operated in a manner whereby all customers, employees, and invitees of the User shall have the opportunity to obtain all the goods, services, accommodations, advantages, facilities and privileges of the Premises without discrimination of race, creed, color, sex, age, national origin, ancestry, handicap or disability of any kind. User shall not discriminate in the conduct and operation of its business in the Premises against any person or group of persons because of the race, creed, color, sex, age, national origin, ancestry, handicap or disability of such person or group of persons. 7.7 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 14 modification of this License, or any other License 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 User entering into the subject transaction. 7.8 Non -waiver of Violation Any failure by the City at any time or from time to time to enforce and require the strict keeping and performance of any of the terms or conditions of this License shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City from insisting on the strict keeping and performance of such terms or conditions at any later time. No waiver of any right hereunder shall be effective unless in writing and sighed by the City. 7.9 Amendments and Modifications No amendments or modifications to this License shall be binding on either party unless in writing, signed by both parties and approved by the City Manager. The City Manager is further authorized to make non -substantive amendments to such License, as needed, with terms and conditions more particularly set forth in the License, subject to City Attorney approval. 7.10 Compliance with Applicable Laws The User accepts this License and hereby acknowledges that User's strict compliance with all applicable federal, state and local laws, ordinances and regulations is a condition of this License, and the User shall comply therewith as the same presently exist and as they may be amended hereafter. This License shall be governed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other riles which would require the application of the laws of another jurisdiction. 7.11 Captions Title and section headings are for convenient reference and are not a part of this License. 7.12 Governing Law & Venue It is the intent of the Parties hereto that all questions with respect to the construction of this License and the rights and the liabilities of the Parties hereto shall be determined in accordance with the laws of the State of Florida. Additionally, any disputes, civil action, or legal proceeding arising out of or relating to this License shall be brought in the courts of record in Miami -Dade County. The parties shall each bear their own attorneys' fees. 7.13 Interpretation This License is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties. Should the provisions of this License require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or 15 construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by .reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this License. 7.14 Entire License This instrument and its attaclunents constitute the sole and only License of the parties hereto and correctly set forth the rights, duties and obligations of each to the other as of its date. Any prior Licenses, promises, negotiations or representations not expressly set forth in this :License are of no force or effect. 16 IN WITNESS WHEREOF, the Parties ].hereto have executed this License of the day and year first above written. Attest: Todd B. Hannon City Clerk Approved as to legal form and correctness: By: Victoria M6ndez City Attorney WITNESSES: By:_ Signature Print Name By: — Signature Print Name CITE' OF MIAMI, a Florida municipal corporation IN Daniel J. Alfonso City Manager Approved as to insurance requirements: Amt -Marie Sharpe Risk Management Director 17 USER By: CORPORATE SEAL EXHIBIT A PREMISES — LEGAL DESCRIPTION & SKETCH Folio Number(s): 01-0100-000-0520 Street Address: 401 Biscayne Boulevard., N215, Miami, Florida 33132 Legal Description: MIAMI NORTH PB B-41 TR E OF BLVD BET THE S/L NE 6 ST PROD ELY & SLY/L SE 2 ST PROD ELY WITH RIP -RTS BAY -FRONT PARK & CITY YACHT BASIN PART 2 OF ASSESSMENT LESS LEASEHOLD TO RESTAURANT ASSOCIATES IND INC & LESS THAT PORT DESIGNATED AS TR B MIA HARBOR. BAYFRONT PARK PROJ DEEDED TO USA PER OR 12590-1427 FOLIO 01-0100-000-0521 & LESS THAT PORT DESIGNATED AS BAYSIDE FOLIO 01-0100-000-0522 & LESS THAT PORT DESIGNATED AS PARKING GARAGE FOR BAYSIDE FOLIO 01-0100-000-0523 18 Sketch: AREA OF APPRAISED PROPERTY BPR 14 AP 144 Square Feet �• � s I 2c-0 � t6 -t' 10'�4'I 6;'-3' 32'U' �Y•0' � ' I _ �---- I�¢ a 53, W x 71r�3, �1�14Po(ffS s I .I wwuzw 'w•I I ' �GF•IBPFDI$ BAR h� D �.pal .70'9 S` WAY 4 1Im �Sn1'. LI h 6 NN. D a D. 0 4 k.N Di I 3 ro D 0� 0 OPS D o lS�tt+ 1fi�Y `aa v oa m� I %SISld' 08010s5J1086 r c o ,r -v v m 64'-0' rr 1095 I 1,095 11.05 _ - - vw l25 _ - 1130 SAO I 1 114b- r 1261----M5 12.5D._.. 1145 230 1225 1216 I ta9 Liss Yoh G^hF$ .ttal r`n 280 1275 3 t.. 3. @70 0 o20-0. o 00 FKj ��� S2'-6' Vi6°p�. o day o 0 1r. Ca' -0 F ,,3� L 125 f2 d195 1% h o�i 0 740 l,U]{.. W i.-0'9p� kaao. n- ti ttOMR a 53, W //� 646 SF r� C��1"R+ COR ��' V� CO3RIDCi PL+J17Ed Sq SUNGPS h11T 'LAM PLN1� FLOOR PLAN, 19 18 1s.z3s6 EXHIBIT B CONDITIONS OF USE FOR OCCUPANCY 1. User shall be responsible for returning the Premises back to the same or better condition at the expiration or termination of this License. 2. User shall remove all materials, tables, chairs, equipment, restaurant fixtures, and additions placed and/or stored on the Premises at the expiration or termination of this License. 20 I. IL. III EXHIBIT C INSURANCE REQUIREMENTS Commercial General Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury Damage to Rented Premises B. Endorsements Required City of Miami listed as an additional insured Contingent Liability & Contractual Liability Premises & Operations Liability Additional Insured Endorsement required Primary and Non Contributory Liability Business .Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit $1,000,000.00 $2,000,000.00 $1,000,000.00 $1,000,000.00 $ 100,000.00 Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $1.,000,000.00 B. Endorsements Required City of Miami listed as an Additional Insured Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation, Employer's Liability A. Limits of Liability $500,000.00 for bodily injury caused by an accident, each accident. $500,000.00 for bodily injury caused by disease, each employee 21 $500,000.00 for bodily injury caused by disease, policy limit IV. Business Personal Property The licensee shall maintain and afford coverage for business personal property, including leased hold improvements subject to special form causes of loss (All Risk) including wind and hail with a valuation option of replacement cost, including coverage for business interruption, loss of income and extra expense coverage on an actual loss sustained basis, or alternate coverage form, covering the interruption or suspension of business operations, the necessary extra expense incurred, and any loss of income with consideration to the continuation of all normal charges and continuing expenses, including continuing expenses acquired through contractual obligations, and payroll resulting from a covered cause of loss. The licensee shall also maintain in place coverage for flood insurance, if applicable. V. Umbrella Liability A. Limits of Liability Each Occurrence $1,000,000.00 Policy Aggregate $1,000,000.00 Excess Follow Form over all applicable liability policies, including liquor, if applicable. VI. Liquor Liability Each Occurrence Policy Aggregate $1,000,000.00 $1,000,000.00 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above:: The company must be rated no less than "A-" as to management, and no less than "Class W 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. Tenant shall make available, and. provide the City upon request, with copies of all insurance policies, including any and all applicable endorsements. 'The City reserves the right to amend, change, or alter insurance requirements, and may be required, or deemed applicable in connection with the scope of services, or agreement. The City further reserves the right to require copies of all applicable insurance policies, including all Wil corresponding endorsements affording coverage in connection with this agreement, or scope of services, 23 EXHIBIT D CORPORATE RESOLUTION AND UPDATED CORPORATE STATUS OF USER CORPORATE RESOLUTION 24