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HomeMy WebLinkAboutExhibit - Access AgreementACCESS AGREEMENT ISSUED BY THE CITY OF MIAMI TO MIAMI DADE COUNTY FOR THE OCCUPANCY AND USE OF CITY -OWNED PROPERTY LOCATED AT 3501 & 3801 RICKENBACI{ER CAUSEWAY MIAMI, FL 33149 RECITALS ARTICLE I Section 1.1 Section 1.2 Section 1.3 Section 1.4 Section 1.5 Section 1.6 Section 1.7 TABLE OF CONTENTS USE OF PREMISES Permitted Use Occupancy and Use Period Manner of Property Use Interest Conferred By This Agreement This Agreement Confers No Exclusive Possession of the Property No Assignment or Transfer Option to Renew ARTICLE H OCCUPANCY & USE FEE Section 2.1 Consideration for Occupancy Section 2.2 Easement Areas ARTICLE III CONDITION, REPAIR & ALTERATIONS Section 3.1 Condition of the Property Section 3.2 Alterations, Additions or Replacements Section 3.3 Violations, Liens and Security Interests ARTICLE IV ACCESS Section 4.1 City Access to Facility ARTICLE V INSURANCE & INDEMNIFICATION Section 5.1 Insurance Section 5.2 Intentionally Deleted Section 5.3 Indemnification and Hold Harmless Section 5.4 No Liability ARTICLE VI DEFAULT & TERMINATION Section 6.1 Termination By Request of Either of the Parties Without Cause Section 6.2 Termination By City Manager For Cause Section 6.3 Termination due to Reversion Section 6.4 Surrender of Premises ARTICLE VII Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 MISCELLANEOUS Hazardous Materials Taxes and Fees Notices Advertising Severability Nondiscrimination Waiver of Jury Trial Non -waiver of Violation ii 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 Agreement EXHIBITS EXHIBIT A PROPERTY EXHIBIT B EASEMENT AREAS EXHIBIT C INSURANCE REQUIREMENTS Im ACCESS AGREEMENT THIS ACCESS AGREEMENT ("Agreement") is made this day of , 20 by and between the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida ("City") and MIAMI-DADE COUNTY, a Florida governmental entity, ("User"). The City and User, (together the "Parties") hereby recite: RECITALS WHEREAS, the City is owner in fee simple of the properties located at 3501 & 3801 Rickenbacker Causeway; WHEREAS, Miami -Dade County has used in the past and is desirous to continue using a portion of the City owned properties located at 3501 & 3801 Rickenbacker Causeway, as more specifically described in Exhibit A ("Property"), as parking for attendees, support employees and volunteers of the annual tennis tournament currently known as the Miami Open, at Crandon Park Tennis Center ("Tennis Tournament"); WHEREAS, it is the mutual desire of the Parties that the Property be used by the User temporarily by means of this Agreement; WHEREAS, this Agreement does not transfer any interest in the Property including any leasehold interest in subject Property owned by the City; does not confer a right to use the Property for any purposes that are not specified herein; and does not convey or transfer any right to exclude the City from the Property; 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 Permitted Use The City is the owner of real Property located at 3501 & 3801 Rickenbacker Causeway, Miami, Florida, 33149 ("Property"). The User wishes to use the Property, as indicated in Exhibit A, to serve as parking for attendees, support employees, and volunteers of the annual Tennis Tournament currently known as the Miami Open, at Crandon Park Tennis Center ("Permitted Uses"). The City shall authorize the User to occupy and use the Property for the above mentioned Permitted Uses, under the conditions hereinafter set forth, and further subject to compliance with all applicable laws, rules, regulations, permits, licenses, and similar approvals, and for no other purpose or use of any kind. Any use of the Property that is not authorized under the Permitted Uses must receive the prior written consent of the City Manager of the City of Miami or the Director of the Department of Real Estate and Asset Management ("Director") of the City of 4 Miami, 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 Pursuant to Section 1.3 of this Agreement, the applicable use period for such Agreement shall be as defined by the Agreement Period (defined below) consisting of twenty three (23) days of permitted use per year. The term of this Agreement is for a period of twenty (20) years ("Original Term") commencing on the Effective Date as defined hereafter. The "Effective Date" of this Agreement is the execution date of the Agreement by the last of the Parties and shall continue until terminated by a mutual agreement of both parties or pursuant to section 6.2 of this Agreement. 1.3 Manner of Property Use User's use of the Property is non-exclusive and User 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 Agreement or other similar Agreement on this Property that would interfere with or disrupt User's ability to operate on the Property during the Agreement Period (as defined below), or as long as the Agreement is in effect. No other City lessee or licensee may use space on the property in competition with the Tennis Tournament during the fourteen (14) days of the Tennis Tournament event which for 2017 is March 20`h through April 2"d. Annually, the User shall provide written notice to the City of Miami's ("City") Department of Real Estate and Asset Management at the notice address provided in Section 2.3 not later than ninety (90) days following the completion of the prior year's Tennis Tournament, informing the City of the dates that the upcoming Tennis Tournament will encompass. The User will be allowed to use the property for the purpose of conducting the Permitted Uses for a fourteen (14) day period ("Tournament Days"). The User will be permitted access to the Property to set up and erect necessary equipment up to seven (7) days before the commencement of the Tennis Tournament ("Setup"). The User will be permitted access to the Property to remove and take down equipment up to two (2) days after the final date of the Tennis Tournament ("Tear Down"). Collectively, the Tournament Days, Setup and Tear Down will be referred to as the ("Agreement Period"). If necessary, additional time may be provided subject to City Manager or Director approval, which shall not be unreasonably withheld. If additional time is required by User, User will have to work around any events that the City may have scheduled to avoid impacting City revenues, or may otherwise compensate the City for impacted revenues. The City will not unreasonably restrict access to User for Setup. The User has no right to access the Property at any other time or date. Notwithstanding the foregoing, the City has historically allowed the Miami Rowing Club the use of a portion of the parking lot of the Marine Stadium during the Agreement Period for the Miami International Regatta and will continue to be allowed to do so. 5 1.4 Interest Conferred By This Agreement User agrees that this Agreement has been issued by the City to authorize User to occupy the Property solely for the limited purpose of the Permitted Use and no other purpose or uses and solely for the dates listed in Section 1.3. 1.5 This Agreement Confers No Exclusive Possession of the Property This Agreement confers no exclusive possession of the Property, provided however, the City agrees not to enter into another Agreement or any other similar agreement on this Property that would interfere with User's ability to operate for the Permitted Uses on the Property during the Agreement Period, or so long as this Agreement is in effect. This will not be construed to prevent the User from restricting access to the Property. The User 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 Agreement Period except as mutually agreed by the City and User. This Agreement solely authorizes User to the temporary use of the Property for the limited purposes set forth herein and for no other purpose. The Parties hereby agree that the provisions of this Agreement do not constitute a lease. 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 on the Property and to use the Property, subject to the terms of this Agreement. The City retains dominion, possession and control of the Property. Therefore, no lease interest in the Property is conferred upon User under the provisions hereof. User 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 Agreement or its use of the Property hereunder. Additionally, User 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 User for improvements, construction, repairs, partitions, or alterations to the Property which may be authorized by the City Manager or the Director. 1.6 No Assignment or Transfer The User may not assign or transfer this Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement. 1.7 Ownership of Improvements As of the Effective Date and throughout the Users occupancy and Agreement Period, title to the Property and all improvements thereon shall be vested in City. Furthermore, title to all Alterations made in or to the Property, whether or not by or at the expense of User, shall, unless otherwise provided by written agreement, immediately upon their completion become the Property of the City and shall remain and be surrendered with the Property. 1.8 Option to Renew 0 User has the option of extending this Agreement for one (1) additional term of twenty (20) years each ("Renewal Term"), as long as the User is not in Default of any of the Agreement provisions. To exercise the Renewal Term, the User must give the City written notice by the latter of (i) the date which is one hundred eighty (180) prior to the expiration date of the Original Term or (ii) the date thirty (30) days following written notice from the City advising User that User has failed to furnish notice of its option to exercise the Renewal Term, as applicable, in the manner provided for herein, which notice shall state in bold capitalized large font letters that such notice constitutes final notice to User of its option to exercise the Renewal Term. The Renewal Term will be on the same terms and conditions as the Original Term. ARTICLE II USE FEE & FINANCIAL RECORDS 2.1 Consideration for Occupancy In consideration of this Agreement, commencing on the Effective Date, User agrees to enter into an easement agreement(s) in a form(s) acceptable to the county attorney for the approximate areas located on the attached aerial map attached hereto as Exhibit B ("Easement Areas") which are to be used and improved by the City at the City's sole cost and expense. 2.2 Easement Areas The City will be authorized to improve the Easement Areas in order to create driveways to the properties currently known as the Miami Rowing Center ("Area 3") and the Marine Stadium Marina ("Area 2"). In addition, the area in front of the property currently known as Whiskey Joe's ("Area I") will be improved to be used as a driveway and as overflow parking during special events held by the City. ARTICLE III CONDITION, REPAIR & ALTERATIONS 3.1 Condition of the Property User accepts the Properties "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 Property in good order and repair during the Agreement Period 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 Property required or caused by User's use of any part thereof. User agrees to make all changes necessary to'the Property 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. 7 3.2 Alterations Additions or Replacements Except in the event of an emergency, and in the case of the conditions and requirements specified in Section 3.1, 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 or the Director, 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 therefore shall have been submitted to and approved by the City Manager or the Director. User acknowledges that any approval given by the City Manager or Director pursuant to this Section shall not constitute an opinion or agreement 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 perform 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, all notices of violations arising from, or otherwise in connected with, User's improvements, use, occupancy, or operations in the Property 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. To the extent allowed in Section 768.28, Florida Statutes, User further agrees to hold City harmless from and to indemnify the City against any and all claims, demands and expenses, including attorney's fees, of any contractor, subcontractor, material person, laborer or any other third person with whom User has contracted or otherwise is found liable, in respect to the Property. Nothing contained in this Agreement shall be deemed, construed or interpreted to imply any consent, agreement, 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 Property or any of the improvements thereon. All contracts, subcontracts, purchase orders, or other agreements involving the Property shall provide for the waiver of any lien rights in the Property and provide that the contracting party agrees to be bound by such provision and include the waiver provision in any sub agreement. 4.1 City Access to Facility ARTICLE IV ACCESS 8 The City and its authorized representative(s) shall at all times have access to the Property. 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 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 terms and provisions of this Agreement and all applicable laws, ordinances, rules, and regulations, (d) to show the Property, to prospective purchasers or tenants, and (c) for other purposes as may be deemed necessary by the City Manager or the Director 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 Agreement. ARTICLE V INSURANCE & INDEMNIFICATION 5.1 Insurance Prior to User, its agents, employees, representatives, contractors, sub -contractors, consultants or anyone else directly or indirectly employed by any of them entering upon the Property 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 Users occupancy and Agreement Period, the types and amounts of insurance coverages set forth in Exhibit C, 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, property damage, and regulatory actions by governmental agencies arising out of or related to the activities undertaken by the User upon the Property 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 C accordingly as necessary. The User shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement 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 that expired certificates are not replaced with new or renewed certificates which cover the Users occupancy and Agreement Period: (i) the City shall suspend this Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Director; or 6 (ii) the City may, at its sole discretion, terminate the Agreement for cause and seek appropriate remedies in conjunction with the violation of the terms and conditions of this Agreement. Compliance with the foregoing insurance requirements shall not relieve User of its liabilities and obligations under this Agreement. User shall require as well its construction contractors, subcontractors, and vendors for the Project that come onto the Property to furnish the User and the City, evidence of the following insurance coverage, unless this requirement is waived in writing by the City Manager or the Director. 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 Agreement. Any insurance proceeds recovered on account of any damage or destruction to the Property 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 or the Director, 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 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 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, then 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 Property by fire or other casualty. If no third party or parties shall be 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 To the extent allowed by Section 768.28, Florida Statutes, 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 Property sustained in or on the Property, 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, attorney's fees, expenses, and liabilities incurred in and about the defense of any such claims and the investigation thereof, even if the claims, costs, liabilities, suits, actions, 10 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 Property, of any Hazardous Materials placed on or about the Property 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. 5.4 No Liability In no event shall the City be liable or responsible for injury, Ioss or damage to the Property, improvements, fixtures and/or equipment belonging to or rented by User, its officers, agents, 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 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 from other sources. User indemnifies 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 Property, User, on behalf of himself, his agents, invitees and employees, does hereby release from any legal liability the City, its officers, agents and employees, from any and all claims for injury, death or property damage resulting from User's use of the Property. ARTICLE VI DEFAULT & TERMINATION 6.1 Termination By Request of Either of the Parties Without Cause. Either party may cancel this Agreement at any time, without cause, by giving not less than three hundred sixty (360) days written notice prior to the end of any monthly period to the non -cancelling party prior to the effective date of the cancellation. This is a cancellation for convenience clause and neither party shall have any recourse against the other party due to the exercise of such cancellation provided. 6.2 Termination 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 Agreement, then, and in such event, after thirty (30) 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 11 thirty (30) day period, this Agreement shall be automatically canceled without the need for further action by the City. 6.3 Termination due to Reversion In the event that the deed dated April 2, 2013 for a portion of Virginia Key to be used to construct a public municipal parking garage reverts back to Miami -Dade County, the City may terminate this Agreement by providing 30 days written notice. 6.4 Surrender of Premises In event of cancellation pursuant to Section 6.2, "Termination By City Manager For Cause," at the expiration of the Notice Period, User shall peacefully surrender the Property broom clean and in good condition and repair together with all alterations, fixtures, installation, additions, and improvements which may have been made in or attached on or to the Property. Upon surrender, User shall promptly remove all its personal property, trade fixtures and equipment and User shall repair any damage to the Property caused thereby. Should User fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Property 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 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 Property to a condition acceptable to the City. In the event User fails to remove its personal property, equipment and fixtures from the Property within the time limit set by the notice, said Property shall be deemed abandoned and thereupon shall become the sole personal property of the City. The City, at its sole discretion and without liability, may remove and/or dispose of same as City sees fit, all at User's sole cost and expense. 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 Property required for the User's use, or storage of, any Hazardous Materials in or about the 12 Property in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. Upon termination or expiration of this Agreement, the User shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Property by the User or at the User'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 Article to prohibit the User from operating in the Property for the uses described in the Section of this Agreement entitled "Purpose". The User may operate according to the custom of the industry so long as the use or presence of Hazardous Materials is strictly and properly monitored according to, and in compliance with, all applicable governmental requirements. The requirements of this Section of the Agreement shall survive the expiration or termination of this Agreement. 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 Property, or against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Property 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 Agreement 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 2 Avenue, 10th Floor Miami, FL 33130 WITH A COPY TO: City of Miami Department of Public Facilities 444 SW 2nd Avenue, Suite 325 13 USER Attn. City of Miami City Attorney's Office 444 SW 2 Avenue, Suite 945 Miami, FL 33130 Miami, FL 33130 7.4 Advertising User shall not permit any signs, decoration, or advertising matter to be placed either in the interior or upon the exterior of the Property without having first obtained the prior written approval of the City's Director of Real Estate and Asset Management ("Director') or his/her designee, which approval may be withheld for any or no reason, at his sole discretion. User shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. User must further obtain approval from all governmental 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 Agreement, User 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 User at its sole cost and expense. Should User fail to repair any damage caused to the Property within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Property 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 Property an appropriate sign indicating City's having issued this Agreement. 7.5 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, 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 Agreement shall remain unmodified and in full force and effect. It is the express intent of the parties that this Agreement constitutes an Access Agreement and not a lease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement, or the application thereof to any circumstance, suggest that a lease, rather than an Access Agreement, has been created, then such provision shall be interpreted in the light most favorable to the creation of an Access Agreement and (ii) if any provision of this Agreement, or the application thereof to any circumstance, is determined by a court of competent jurisdiction to have created a lease rather than an Access Agreement, then such provision shall be stricken and, to the fullest extent possible, the remaining provisions of this Agreement shall not be affected thereby and shall continue to operate and remain in full force and effect. 7.6 Nondiscrimination The Property 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, 14 advantages, facilities, and privileges of the Property without discrimination of race, creed, color, sex, age, national origin, ancestry, handicap, marital status, or disability of any kind. User shall not discriminate in the conduct and operation of its business in the Property against any person or group of persons because of the race, creed, color, sex, age, national origin, ancestry, handicap, marital status, 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 Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other Agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and 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 Agreement shall not constitute a waiver of any such terms or conditions at any future time and shall not prevent the City from insisting on the strict keeping and performance of such terms or conditions at any later time. No waiver of any right hereunder shall be effective unless in writing and signed by the City. 7.9 Amendments and Modifications No amendments or modifications to this Agreement 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 Agreement, as needed, with terms and conditions more particularly set forth in the Agreement, subject to City Attorney approval. 7.10 Compliance with Applicable Laws The User accepts this Agreement and hereby acknowledges that User's strict compliance with all applicable federal, state, and local laws, ordinances and regulations is a condition of this Agreement, and the User shall comply therewith as the same presently exist and as they may be amended hereafter. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida regardless of any conflict of law or other rules which would require the application of the laws of another jurisdiction. 7.11 Captions Title and section headings are for convenient reference and are not a part of this Agreement. 15 7.12 Governing Law & Venue It is the intent of the Parties hereto that all questions with respect to the construction of this Agreement and the rights and the liabilities of the Parties hereto shall be determined in accordance with the laws of the state of Florida. Additionally, all disputes civil action or legal proceeding arising out of or relating to this Agreement shall be brought in the courts of record in Miami -Dade County. 7.13 Interpretation This Agreement is the result of negotiations between the parties and has been typed/printed by one party for the convenience of both parties. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 7.14 Entire Agreement This instrument and its attachments constitute the sole and only Agreement of the parties hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date. Any prior Agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the day and year first above written. ATTEST: TODD B. HANNON CITY CLERK APPROVED AS TO LEGAL FORM AND CORRECTNESS: BY: VICTORIA MENDEZ CITY ATTORNEY MIAMI-DADE COUNTY, a political subdivision of the State of Florida ATTEST: HARVEY RUVIN, CLERK Approved as to form and legal sufficiency: Assistant County Attorney CITY OF MIAMI, A FLORIDA MUNICIPAL CORPORATION DANIEL J. ALFONSO CITY MANAGER APPROVED AS TO INSURANCE REQUIREMENTS: ANN -MARIE SHARPE, DIRECTOR RISK MANAGEMENT BY ITS BOARD OF COUNTY COMMISSIONERS By: Carlos A. Gimenez County Mayor 17 18 EXHIBIT A PROPERTY 19 Area I EXHIBIT B EASEMENT AREAS 21 41V ��iL Area 2 T�rll Area 3 :i. ` Z : - 23 I. II 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 $1,000,000 $2,000,000 $1,000,000 $1,000,000 $100,000 A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 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 for bodily injury caused by an accident, each accident. $500,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit Q! IV. Business Personal Property The User 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 User shall also maintain in place coverage for flood insurance, if applicable. V. Umbrella Liability A. Limits of Liability Each Occurrence $1,000,000 Policy Aggregate $1,000,000 Excess Follow Form over all applicable liability policies. 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 V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /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 corresponding endorsements affording coverage in connection with this agreement, or scope of services. 25