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Use Agreement with the School Board of Miami-Dade County aoI6 -a966i USE AGREEMENT THIS USE AGREEMENT (the "Agreement"), made and entered into this ,l day of L 17 , 2017,by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida(hereinafter called the"CITY")and THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter called the "BOARD"). The BOARD and CITY are sometimes referred to in this Agreement individually as a"Party" and collectively as the "Parties". WITNESSETH: WHEREAS,the BOARD currently utilizes the CITY-owned Flamingo Park Athletic Fields (as defined herein)under that certain January 1,2007 Use Agreement, for the use and benefit of the students of Miami Beach Senior High School (the "School"), which Agreement shall expire on December 31, 2016; and WHEREAS,the CITY is interested in continuing to provide and make facilities available for the use and benefit of the students of Miami-Dade County Public Schools for recreational programs and activities; and WHEREAS, the CITY owns and has under its jurisdiction certain property, located at 999 11th Street, Miami Beach, Florida 33139 ("Flamingo Park"), capable of being utilized at mutually suitable times for the BOARD's programs; and WHEREAS,it is desirable and necessary for the BOARD to continue to utilize the baseball field,located at 1435 Michigan Avenue,Miami Beach,Florida 33139,and softball fields,located at 13th Street and Meridian Avenue, Miami Beach, Florida 33139, within Flamingo Park, hereinafter collectively referred to as the"Flamingo Park Athletic Fields",as athletic fields and as baseball and softball fields, in conjunction with the BOARD's educational and recreational objectives; and 1 WHEREAS,these objectives may be best achieved through joint and coordinated action of the CITY and the BOARD, in making the CITY's property available for such purposes in the most cost effective manner; and WHEREAS,the Mayor and City Commission of the City of Miami Beach have approved this Agreement by the adoption of Resolution No. 2016-29661, at its meeting on the 14th day of December, 2016; and WHEREAS,the School Board of Miami-Dade County,Florida at its meeting on the 14th day of December,2016, School Board Agenda item F-2 Board Action# 118,569,approved entering into this Agreement. NOW THEREFORE, in consideration of the mutual covenants hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: I. RECITALS The foregoing recitals are true and correct and are incorporated herein by reference. II. PREMISES The CITY does hereby agree to allow the BOARD, and the BOARD does hereby accept from the CITY, the non-exclusive use of the Flamingo Park Athletic Fields, including the bleachers and all related facilities thereon, hereinafter called the "Premises", as depicted in the Survey incorporated herein by reference and legally described in Exhibit "A" hereto. III. TERM OF AGREEMENT The term of this Agreement shall be for an initial term of five(5)years,commencing on January 1, 2017 and ending on December 31, 2021. Provided that the BOARD is not in default under this Agreement,and upon written notice by the BOARD,which shall be given to the CITY no later than 180 days prior to the expiration of the initial five (5) year term, this Agreement may be extended by the City Manager, at the City Manager's sole discretion, for an additional five(5)year 2 term.A contract year as referenced herein shall refer to January 1 of a given year through December 31St of the same year. IV. USE OF PREMISES The specific area of use by the BOARD shall be limited to the Premises. The BOARD shall have the right and use of the Premises for up to a maximum of 110 days per year during Miami Beach Senior High School's baseball and softball season.The term of use for baseball and softball seasons shall commence each year beginning with the first official practice date for the Miami Beach Senior High School baseball Season;said Baseball"season"consisting of 110 days(92 practice days, 5 day games, and 13 night games), and said Softball"season"consisting of 110 days (10 day games and 100 practice days) per year during Miami Beach Senior High School's softball season. Hours of use for practice days shall be approximately from 3:00 p.m.to 6:30 p.m. Baseball and Softball teams will have access and use of the entire Premises until 5:00 p.m.,at which time the Outfield portion of the Premises would become available for CITY Parks and Recreation Programming. School teams would still have access to the infield and batting cages for practice from 5:00 p.m.-6:30 p.m. Day and night games shall be from one and one half(1 t/2) hours before the game starts to one (1) hour after the game ends, and no game to end later than 9:00 p.m. (the `BOARD's Period of Use"). Any additional usage by the BOARD beyond the annual 110 day period for baseball and the 110 day period for softball set forth above shall be subject to a fee of 1/110th per day based on Base Year Payment for respective sport(as set forth in Article VI herein). Otherwise,the CITY shall have full control,custody,right and use of the Premises at all other times (the "CITY's Period of Use"). On an annual basis,the BOARD shall provide the CITY with a written schedule showing the exact dates for the aforestated 110 days of use for baseball and 110 days of use for softball of the Premises; said schedule to be provided no later than sixty(60)days prior to the commencement of the Miami Beach Senior High School baseball/softball season. Notwithstanding the preceding paragraph,either Party shall be entitled to make application to the other for use of the Premises during the period of use normally associated with the other Party. In that event, the requesting Party will provide the other Party with a request to use the Premises a minimum of seventy two (72) hours prior to the need. Such consent shall not be unreasonably withheld. In the event of a conflict, the decision of the City Manager shall be considered final. 3 The BOARD shall provide adequate supervision of the Premises at all times that the BOARD conducts activities sponsored, controlled or sanctioned by the BOARD thereon. Due to its unique usage and the need to serve the best interests of its students, the BOARD may promulgate and enforce reasonable rules and regulations governing the aforementioned use of the Premises during its Period of Use. The BOARD shall be responsible for and provide reasonable security measures as may be required to protect the Premises and any of the materials,equipment,and furnishings thereon during the BOARD's Period of Use.Under no circumstances shall the City be responsible for any stolen or damaged materials, equipment, and furnishings, nor shall the City be responsible for any stolen or damaged personal property of the BOARD's employees,contractors,patrons,guests,invitees,and/or other third parties. Subject to the provisions of Article X,the BOARD shall reimburse the CITY for any and all maintenance and other costs that the CITY may incur as a result of the BOARD utilizing the Premises during other than its normal Period of Use, in addition to the consideration stipulated in Article VI. The CITY shall invoice the BOARD for direct costs of said additional maintenance and/or other costs that result from added utilization,and the BOARD shall promptly pay same within forty-five (45) days of receipt of said invoice(s). V. IMPROVEMENTS The BOARD shall have the right to request the construction of additional recreational facilities ("Additional Improvements") on the Premises in the future, subject to the prior written consent of the CITY, which consent, if given at all, shall be at the CITY's sole discretion and judgment. If approved,such Additional Improvements shall be made at the sole cost and expense of the BOARD. If approved,the BOARD further agrees that no construction of Additional Improvements(for purposes of this Article V,the term"construction of Additional Improvements"shall also be deemed to include any repairs, alterations, and/or improvements in the amount of$1,000 and over)may be undertaken by it upon the Premises unless the plans for same are: (1) first submitted to and approved by the CITY, in its proprietary capacity, through its City Manager, and as required, in its regulatory capacity, and which plans shall be reviewed and approved by the CITY in a timely manner; 4 and (2) in compliance with all applicable State,County,and BOARD,Department of Education and CITY, respectively, rules and regulations. The CITY also reserves the right, but not the obligation,to construct new and/or additional recreational facilities on the Premises in the future. Construction of such new and/or additional recreational facilities shall not result in an increase in the amount of consideration to be paid by the BOARD to the CITY under Article VI. In that event,the CITY shall provide the BOARD with prior written notice of its intent to construct such additional facilities on the Premises, and will use good faith efforts to coordinate the design, planning and construction with the BOARD to assure that construction of such facilities does not unreasonably interfere or conflict with the BOARD's ability to utilize the Premises for the purposes set forth herein. Notwithstanding the preceding sentence,and this Article V, in general, in the event that the CITY determines to initiate and proceed with any construction involving the Premises at any time during the term of this Agreement(initial or renewal term), the CITY shall have the right, at its sole option and discretion, to terminate this Agreement without cause and/for convenience,upon sixty(60)days written notice to the BOARD,provided that such termination shall not be effective until after the completion of the Miami Beach Senior High School's baseball and softball season underway at the time of termination. VI. CONSIDERATION The BOARD does hereby covenant and agree to pay the CITY,as consideration for its use and occupancy of the Premises for the maximum allowable 110 days requested per year, throughout the term of this Agreement, an amount necessary to reimburse the CITY for the BOARD's prorated share of the annual maintenance costs for the Premises. This amount has been established at twenty two thousand two hundred and three dollars and sixty seven cents($22,203.67) for the 2016/2017 school year(the"Base Year Payment"),and will be promptly payable to the CITY within forty-five (45) days of receipt of an invoice from the CITY. The BOARD and the CITY agree that during the initial term of this Agreement and all extensions thereto, said Base Year Payment shall be adjusted annually, effective January of each contract year, based on the percentage of increase reflected in the Consumer Price Index for All Urban Consumers (CPI-U); Miami-Ft. Lauderdale, FL all items (1982-84=100) ("CPI"). The CPI increase shall be determined by multiplying the Base Year Payment then being paid by a fraction,the 5 numerator of which shall be the CPI for the month preceding the month of adjustment(December), and the denominator of which shall be the CPI for the thirteenth month preceding the month of adjustment. Should the CPI become unavailable, a reasonable substitute designated by the CITY shall be used. The current Base Year Payment shall remain in effect until the City notifies the Board of the new Base Year Payment. The CITY shall attempt to so notify the Board, prior to the adjustment date, of the new Base Year Payment amount; however, failure of the CITY to timely notify the Board of the new Base Year Payment amount shall not be deemed a waiver by the CITY. The new Base Year Payment(or any shortage due)shall be payable retroactively to the effective date of the adjustment date,within forty—five(45)days from receipt of an invoice from the CITY of the new Base Year Payment. Notwithstanding the foregoing, the CPI increase shall not exceed four percent(4%)per year.If the CPI has a negative change,the consideration should remain the same for the upcoming contract year. Notwithstanding anything contained in this Article VI or this Agreement,the BOARD shall also be required to reimburse the CITY for any and all maintenance related and other costs incurred by the CITY as a result of the BOARD's use of the Premises, beyond the 110 days per year usage. VII. LIABILITY FOR PERSONAL PROPERTY The CITY and BOARD agree to insure or self insure their respective interests in personal property to the extent each deems necessary or appropriate and hereby mutually waive all rights to recovery for loss or damage by any means and waive all rights to recovery for loss and damage to such property by any cause whatsoever. The CITY and BOARD hereby waive all rights of subrogation against each other under any policy or policies they may carry or on property placed or moved on the Premises. VIII. LIABILITY FOR DAMAGE OR INJURY Subject to the limitations included within Section 768.28, Florida Statutes, the CITY shall not be liable for any damage or injury which may be sustained by the BOARD or any persons on or about the PREMISES during the BOARD'S Period of Use, other than damage or injury resulting from the negligent performance or failure of performance on the part of the CITY, its agents, representatives or employees,or failure of the CITY to perform its covenants under this Agreement. 6 The CITY shall not be responsible or liable for any loss of business, consequential damages or any other damages arising from acts of God. Subject to the limitations included within Section 768.28,Florida Statutes,the BOARD shall not be liable for any damage or injury which may be sustained by the CITY or any persons on or about the PREMISES during the CITY'S Period of Use,other than damage or injury resulting from the negligent performance or failure of performance on the part of the BOARD, its agents, representatives or employees, or failure of the BOARD to perform its covenants under this Agreement. The BOARD shall not be responsible or liable for any loss of business, consequential damages or any other damages arising from acts of God. IX. INDEMNIFICATION The BOARD does hereby agree to indemnify and hold harmless the CITY, to the extent of the limitations included within Florida Statutes,Section 768.28(the"Act"),subject to the provisions in this Act whereby the BOARD shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of$200,000,or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the BOARD arising out of the same incident or occurrence, exceeds the sum of $300,000 from any and all personal injury or property damage claims,liabilities,losses and causes of action which may arise as a result of the negligence of the BOARD. However,nothing herein shall be deemed to indemnify the CITY from any liability or claim arising out of the negligent performance or failure of performance of the CITY or as a result of the negligence of any unrelated third party. The CITY does hereby agree to indemnify and hold harmless the BOARD, to the extent of the limitations included within Florida Statutes,Section 768.28,subject to the provisions in this Act whereby the CITY shall not be held liable to pay a personal injury or property damage claim or judgment by any one person which exceeds the sum of$200,000, or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the CITY arising out of the same incident or occurrence,exceeds the sum of$300,000 from any and all personal injury or property damage claims,liabilities, losses and causes of action which may arise as a result of the negligence of the CITY. However,nothing herein shall be deemed to indemnify the BOARD from any liability or claim arising out of the negligent performance or failure of performance of the BOARD or as a result of the negligence of any unrelated third party. 7 The provisions of this Article shall survive the expiration or early termination or cancellation of this Agreement. Nothing in this Agreement is intended to operate as a waiver of either Party's sovereign immunity. X. MAINTENANCE OF PREMISES The BOARD shall repair equipment or facilities located on the Premises damaged exclusively by the BOARD's actions, ordinary wear and tear excepted, during its Period of Use, as set forth in this Agreement. The BOARD shall provide the City Manager's designee with prior written notice of its intent to make such repairs. The CITY reserves the right to make any such repairs on behalf of the BOARD and shall advise the BOARD, in writing, of said intention within five(5)days from receipt of the BOARD's notification. The BOARD shall promptly reimburse the CITY within forty-five (45) days of receipt of the invoice for such repairs. The CITY shall be responsible for all other repair and maintenance of the Premises and shall maintain the facilities located on the Premises at a minimum level of service. If repairs are required to reasonably accommodate the BOARD's activities during its Period of Use(and said repairs are not repairs which would be required of the BOARD during its use of the Premises, as set forth in the first paragraph of this Article X), and are not effected by the CITY within thirty (30) days of the CITY receiving written notice from the BOARD requesting said repairs, then the BOARD may declare this Agreement in default pursuant to Article XXIV herein. Notwithstanding the preceding,if repairs are necessary in order to preserve the immediate health and safety of the occupants, and are not commenced by the CITY within three(3)days of written notice from the BOARD, then the BOARD may immediately terminate this Agreement regardless of the provisions of Article XXIV herein The BOARD and CITY, through the on-site School administrator and Park Facilities Manager, respectively, shall coordinate the scheduling of the CITY's maintenance functions to minimize the impact on the BOARD's uses pursuant to this Agreement. XI. ASSIGNMENT AND SUBLETTING OF PREMISES The BOARD shall not,at any time during the term of this Agreement,sublet in part or whole the Premises,or assign this Agreement or any portion or part thereof,without the prior written consent of the CITY. 8 XII. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the Parties herein,their heirs,executors,legal representatives, successors and assigns. XIII. EXAMINATION OF PREMISES The CITY may enter upon the Premises at any time during the BOARD's Period of Use, provided the CITY does not unreasonably interfere with or unduly burden the BOARD's operations. The CITY may enter the Premises at any time in the event of an emergency (as same shall be determined by the CITY, in its sole and absolute discretion). XIV. CANCELLATION FOR CONVENIENCE In addition to the provisions of Articles V, X, XXIV and XXVI, both Parties shall have the right to cancel the Agreement at any time,without cause and for convenience,by giving the other Party written notice at least one (1) year prior to the effective date of said cancellation, provided that such cancellation by the CITY shall not be effective until after the completion of the Miami Beach Senior High School Baseball/Softball season underway at the time of cancellation. However, if the CITY exercises said right to cancel (including the City's exercise of a termination for convenience pursuant to Article V), then the CITY shall reimburse the BOARD for a prorata amount of any City-approved permanent improvements made to the Premises by the BOARD during the term herein(if any), as documented pursuant to Article V, and as if amortized over a sixty(60) month period. XV. ADVERTISING The BOARD shall not place any signs or advertising matter on any portion of the Premises except with prior written approval of the CITY or its designee,which approval shall not be unreasonably withheld. XVI. NOTICE AND GENERAL CONDITIONS A. All notices or communications under this Agreement by either Party to the other shall be sufficiently given or delivered if dispatched by (1) certified U.S. mail, postage pre- 9 paid,return receipt requested, (2)hand delivery,(3)Federal Express or other comparable overnight mail service,(4)telephone facsimile transmission with transmission receipt,or(5)electronic mail to the following addresses, or as the same may be changed in writing from time to time. Such notice shall be deemed given on the day on which personally served, or if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. 1. In the case of notice or communication to the CITY: City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 Fax: 305-673-7782 JimmyMorales@miamibeachfl.gov With a copy to: City of Miami Beach Parks and Recreation Department Attn: Director 1701 Meridian Avenue, Suite 401 Miami Beach, Florida 33139 Fax: 305-673-7730 JohnRebar@miamibeachfi.gov 2. In the case of notice or communication to the BOARD: School Board of Miami-Dade County, Florida c/o Superintendent of Schools School Board Administration Building 1450 N.E. 2 Avenue, Room 912 Miami, Florida 33132 Fax: 305-995-1488 With copies to: Miami-Dade County Public Schools Office of School Facilities Attn: Chief Facilities Officer 1450 N.E. Second Avenue. Room 923 Miami, Florida 33132 Fax: 305-995-1401 Email: JTorrens@dadeschools.net 10 Miami-Dade County Public Schools Planning, Design and Sustainability Attn: Executive Director 1450 N.E. Second Avenue. Room 525 Miami, Florida 33132 Fax: 305-995-4760 Email: MLevine@dadeschools.net The School Board of Miami-Dade County, Florida School Board Attorney's Office 1450 NE 2nd Avenue, #400 Miami, FL 33132 Attn: School Board Attorney Fax: 305-995-1412 E-mail: Walter.Harvey@dadeschools.net and ACraft@dadeschools.net B. Title and paragraph headings are for convenient reference and are not intended to confer any rights or obligations upon the parties to this Agreement. C. For purposes of administering this Agreement,the City Manager or the City Manager's designee, as may from time to time be designate, in writing, by the City Manager, shall have authority to act for him/her with respect to any or all matters pertaining to this Agreement. The City Manager's designee shall be the City's Parks and Recreation Department Director, who shall also be authorized to designate, in writing, a contract manager with respect to the day to day operational matters pertaining to this Agreement. D. For purposes of the Agreement, the Superintendent of Schools or his/her designee shall be the party designated by the BOARD to grant or deny all approvals required by the Agreement dealing with routine Park/School coordination,construction of improvements,if any,or changing periods or schedules of use. E. In addition to the above,for purposes of the Agreement,the Superintendent of Schools shall be the party designated by the BOARD to grant or deny any approvals required by the Agreement,including without limitation,amending any exhibits to the Agreement,placing the CITY in default, or renewing, extending, canceling or terminating the Agreement. F. Except as otherwise provided in this Agreement,any Notice shall be deemed received only upon actual delivery at the address set forth above. Notices delivered after 5:00 PM(at the place of delivery) or on a non-business day, shall be deemed received on the next business day. 11 If any time for giving Notice contained in this Agreement would otherwise expire on a non-business day,the Notice period shall be extended to the next succeeding business day. "Day"as used in this Agreement shall be defined as calendar day, unless otherwise provided. Counsel for the BOARD and counsel for the CITY may deliver Notice on behalf of the BOARD and the CITY,respectively. Any party or other person to whom Notices are to be sent or copied may notify the other parties of any change in name or address to which Notices shall be sent by providing the same pursuant to this provision. XVII. SURRENDER OF PREMISES Upon the termination or expiration of this Agreement,the BOARD shall remove from the Premises any personal property and non-permanent improvements made by it to the Premises and shall promptly and peacefully surrender and deliver possession of the Premises to the CITY,and all permanent improvements constructed by the BOARD as provided for in Article V, in their then existing condition,shall become the property of the CITY,and the CITY shall have no responsibility and/or obligation to reimburse the BOARD for any permanent improvements made to the Premises by the BOARD. XVIII.NON-DISCRIMINATION The BOARD hereby agrees to comply with the City of Miami Beach Human Rights Ordinance,as codified in Chapter 62 of the City Code,as may be amended from time to time,which prohibits discrimination in employment,housing,public accommodations,or public services,on the basis of actual or perceived race, color, national origin, religion, sex, intersexuality, sexual orientation, gender identity, marital and familial status, age, ancestry, height, weight, domestic partner status,labor organization membership,familial situation,or political affiliation,or mental or physical handicap. As such, the BOARD agrees that there will be no discrimination against any person based upon actual or perceived race,color,national origin,religion,sex,intersexuality,sexual orientation, gender identity, marital and familial status, age, ancestry, height, weight, domestic partner status,labor organization membership,familial situation,or political affiliation,or mental or physical handicap in the use of the Premises and improvements thereof. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred,this Agreement automatically terminates without any further action on the part of the non-discriminatory 12 Party, effective the date of the Court Order. XIX. AMENDMENTS The CITY and BOARD, by mutual agreement, shall have the right, but not the obligation,to amend this Agreement. Such amendments shall be effective only when signed by both the CITY and BOARD and shall be incorporated as part of this Agreement. XX. CONSTRUCTION OF AGREEMENT This Agreement shall be construed and enforced according to the laws of the State of Florida and the venue for any disputes shall be in Miami-Dade County, Florida. XXI. SEVERABILITY In the event any paragraph, clause or sentence of this Agreement or any future amendment is declared invalid by a court of competent jurisdiction, such paragraph, clause or sentence shall be stricken from the subject Agreement and the balance of the Agreement shall not be affected by the deletion thereof,provided to do so would not render interpretation of the provisions ambiguous or a nullity. XXII. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS The Parties shall comply with all applicable laws,rules, regulations, ordinances and codes of all governmental authorities, including, without limitation, the Florida Building Code, the Americans with Disabilities Act and the Jessica Lunsford Act,as all may be further amended from time to time and to the extent required by applicable law. XXIII.WAIVER No waiver of any provision hereof shall be deemed to have been made unless such waiver be in writing and signed by the CITY or BOARD. The failure of either Party to insist upon strict performance of any of the provisions or conditions of this Agreement shall not be construed as waiving or relinquishing in the future any such covenants or conditions,but the same shall continue and remain in full force and effect. 13 XXIV. DEFAULT PROVISION The City Manager shall notify the BOARD in writing regarding the BOARD'S failure to perform or to comply with the terms and conditions of this Agreement. If the BOARD fails to cure the default within thirty(30)days after receiving written notice,the City Manager,in the City Manager's sole discretion, shall have the right to either extend the cure period beyond the aforestated thirty(30) days,or,in the event that said extension is not granted,in writing,by the City Manager,to immediately terminate this Agreement,without penalty,upon ten(10)days additional written notice to the BOARD, and the CITY shall have no further obligations hereunder and shall be discharged from reimbursing the BOARD for any portion of the consideration stipulated in Article VI or any permanent improvements made to the Premises by the BOARD. The BOARD shall notify the CITY in writing regarding the CITY'S failure to perform or to comply with the terms and condition of this Agreement. If the CITY fails to cure the default within thirty(30)days after receiving written notice,the BOARD,in its sole discretion,shall have the right to either extend the cure period beyond the aforestated thirty(30)days,or,in the event that said extension is not granted,in writing,by the Board,the BOARD shall have the right to immediately terminate this Agreement, without penalty, upon ten (10) days additional written notice to the CITY, upon which event, the CITY shall reimburse the BOARD the prorated share of the consideration stipulated in Article VI for the annual maintenance costs of the Premises prior to the termination and a prorata amount of any City-approved permanent improvements made to the PREMISES by the BOARD during the term herein(if any), as if amortized over a sixty(60)month period, and this Agreement shall thereupon be terminated and have no further force and effect. XXV. PEACEFUL POSSESSION Subject to the terms and conditions of this Agreement, the CITY agrees that the BOARD shall and may peaceably use and enjoy the above described Premises without hindrance or molestation by the CITY. XXVI.DAMAGE OR DESTRUCTION In the event the Premises should be destroyed or so damaged by fire, windstorm or other casualty to the extent that the Premises are rendered untenable or unfit for the purpose of the BOARD, either Party may cancel this Agreement by giving written notice to the other. 14 In the event of cancellation of this Agreement due to damage or destruction of the Premises, the consideration stipulated in Article VI shall be reduced so as to reflect the BOARD's prorated share of the consideration paid by the Board during the contract year when the casualty occurred. XXVII. CONCESSIONS Subject to reasonable rules and regulations implemented by the CITY dealing with insurance requirements and clean-up, Miami Beach Senior High School shall have the exclusive right to operate all refreshment concessions during its home games,as defined under this Agreement, retaining all gross sales and profits therefrom. XXVIII. VENUE/WAIVER OF JURY TRIAL This Agreement shall be governed by,and construed in accordance with,the laws of the State of Florida,both substantive and remedial,without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida,if in state court,and the U.S. District Court, Southern District of Florida,if in federal court. BY ENTERING INTO THIS AGREEMENT, THE BOARD AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. XXIX. LEGAL FEES AND COURT COSTS In the event of any litigation between the Parties under this Agreement, each Party shall be responsible for its own attorney's fees and court costs through trials and appellate levels. The provisions of this paragraph shall survive the expiration or early termination or cancellation of this Agreement. XXX. FLORIDA PUBLIC RECORDS LAW; AUDITS AND INSPECTIONS & ACCESS TO RECORDS Each Party understands the broad nature of these laws and agrees to comply with Florida's Public Records Laws and laws relating to records retention. Each Party shall keep and maintain public records in connection with this Agreement. Each Party shall keep records to show its compliance with program requirements. Each Party must make available,upon request of the other 15 Party, a Federal grantor agency,the Comptroller General of the United States, or any of their duly authorized representatives, any books, documents, papers, and records of each Party which are directly pertinent to this specific Agreement for the purpose of making audit,examination,excerpts, and transcriptions. Upon request from either Party's custodian of public records,provide the other Party with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. Each Party shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term and following completion of the Agreement.Upon expiration or early termination of this Agreement,each Party shall either transfer,at no cost to the other Party,all public records in its possession, or keep and maintain the public records in connection with this Agreement, as required by applicable law. Any copies of all records stored electronically must be provided to the City or BOARD,as applicable,upon a request from either Party's custodian of public records, in a format that is compatible with the information technology systems of the City or BOARD, as applicable. IF THE CITY HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CITY'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT 305-995-1128, prr(c�dadeschools.net,AND 1450 NE 2 AVENUE, MIAMI, FLORIDA 33132. IF THE BOARD HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE BOARD'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT 305-673-7411, RAFAELGRANADO@MIAMIBEACHFL.GOV, AND 1700 CONVENTION CENTER DRIVE, 1ST FLOOR, MIAMI BEACH, FLORIDA 33139. XXXI. COUNTERPARTS This Agreement and any future amendments,may be executed in any number of counterparts, each of which when executed and delivered shall be an original;however,all such counterparts together shall constitute but one and the same instrument. Signature and acknowledgment pages,if any,may be 16 detached from the counterparts and attached to a single copy of this document to physically form one Agreement. XXXII. NOT A LEASE It is expressly understood and agreed that no part,parcel, building, structure, equipment or space referred to in this Agreement is leased to the BOARD;that this Agreement is a Use Agreement and not a lease;and that the BOARD's right to utilize the Premises shall continue only so long as the BOARD complies with the undertakings,provisions,agreements,stipulations and conditions of this Agreement. XXXIII. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD SERVICE ARTICLES Pursuant to Section 82-7 of the City Code, as may be amended from time to time, effective August 2,2014,the City has prohibited the sale or use of expanded polystyrene food service articles by City contractors at City facilities or special event permittees in City facilities or on City property. Additionally,pursuant to Section 82-385 (p)of the City Code,as maybe amended from time to time, no polystyrene food service articles will be allowed in the right-of-way, and no polystyrene food service articles can be provided to sidewalk café patrons. Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded polystyrene is more particularly defined as blown polystyrene and expanded and extruded foams that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead foam), injection molding, foam molding, and extrusion-blown molding (extruded foam polystyrene). Expanded polystyrene food service articles means plates,bowls,cups,containers,lids,trays, coolers, ice chests, and all similar articles that consist of expanded polystyrene. To the extent that this Agreement permits the sale or consumption of food at the Premises, the BOARD agrees not to sell, use, provide food in, or offer the use of expanded polystyrene food service articles at the Premises or in connection with this Agreement. A violation of this section shall be deemed a default under the terms of this Agreement. This subsection shall not apply to expanded polystyrene food service articles used for prepackaged food that have been filled and sealed prior to receipt by the BOARD. 17 Additionally, the BOARD agrees to comply (and ensure compliance by its vendors) with Section 46-92 (c) of the City Code, which states that it is unlawful for any person to carry any expanded polystyrene product onto any beach or into any park within the City. XXXIV. ENTIRE AGREEMENT This Agreement and all Exhibits attached hereto, as those Exhibits may be substituted from time to time as provided for herein,constitute the entire agreement between the Parties and supersedes all previous negotiations,and it may be modified only by an agreement in writing signed by the CITY and BOARD. [INDIVIDUAL SIGNATURE PAGES FOLLOW] 18 IN WITNESS WHEREOF,the CITY and the BOARD have caused this Agreement to be executed by their respective and duly authorized officers the day and year first written above. V j ATTEST CITY OF MIAMI BEAC s' /, I A ✓ 4 4/ , By: 1111A1-1 By: i// y/ Rafael 7I/1 ado Philip Levine, `ay►, '7/ City Clerk Date: fir% /P-- _s I ir; 'rip lame: -_ / — 60 I. , gill wwwilkiktitto ..."'\\I\1 B&--4114, * EINCORP ORATED: • 141 0H 26 APPROVED AS TO FORM & LANGUAGE & FOR EXE. UTION 1\---.0- a —17tt ( ) City Attorney ,. Da et 19 WITNESSES ",6 TO BOARD BOARD: ` THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA Print N.me: _ L) _ /V • , , /f Li By. . .. 8Fel-4 1 k tj .re5 S .- . - ..- . . ..,ls Dz A41 ge ' Print Name: e 2 r{fir 'c Le, z` r( G ) ate: RECOMMENDED: Air e G. Torrens hief Facilities Officer Date: 2X 7 TO THE BOARD: APPROVED AS TO TO THE BOARD: APPROVED AS TO RISK MANAGEMENT ISSUES: FORM AND LEGAL SUFFICIENCY: •fee of Risk and Bents Management Sc ool Board',• o :.% Date: f ( Date: 1 TO THE BOARD: APPROVED AS TO FI A► CI• SUFF CY: / L onardo Fernandez Treasurer Date: ,c 20 EXHIBIT "A" [SIGNED AND SEALED DESCRIPTION AND SKETCH OF THE BASEBALL AND SOFTBALL FIELDS AT FLAMINGO PARK TO FOLLOW] 21 1 1 k ._f`( N R IAD € ,,,,,,,, s. ,.,:ow i , I i 1 i i i xut � ` n---F i t ( I F-7_I' S a BST t f1.16STH 16 ST ...... 16 ST I a' .... ...,. L 1 K. (Liu s< I iK I ti — F z1 3 F} » G 'f Lw%>TI 'Tj r f 15 ST~ 6, i e ST I I MIN 111111 i © _nNE q I 11 4' Wal p ;11 2 i11 t \ 14 _RIZ '1 I it \<.":\ :. F1-4—P7IEEri / I 1 ..,;_;:,, im7, Sow° 1 I 1 it I ��' .La I iii r 14,=. J \ 1.1. - „ /, Ir71 "'l II •�\'' r°--, '—°;---"I r--a- tr�, �` - ,.1{{i iiTFP- It �F I I 1 *.. 1! s ] I N /I[J;' t I £ }�4t v ,,' 1 i ILSv.....1-,1c J ; i 1 EJECT t' 3 il i i i 1€ 1 i__.1 ,3 i i IIS 1 I 9 1 ,� i 9 FIT i SITE s __€ ' r— — :---TriY # 1 1 i .. ' a E ' I Ii ILIO,{ J jj j£ p_ le r""p ” 1 1 II i I I I 1s i } o _ } I i ; f ter ; vis ri hr-7,,---7 i zd LOCATION SKETCH NOT TO SCALE m J C7 J .. W g A 13 SURVEYOR'S NOTES: CERTIFICATION: a 5 1. THE SKETCH IS NOT A SURVEY. THIS NOTE IS REQUIRED BY RULE 5J-17.053(5)(b) FAC I HEREBY CERTIFY: THIS "DESCRIPTIONS/SKETCH TO tX 2. BEARINGS SHOWN HEREON ARE BASE UPON FLORIDA STATE PLANE COORDINATE SYSTEM, EAST ZONE NAD ACCOMPANY DESCRIPTION" IS TRUE AND CORRECT TO -o 1983/90, REFERENCED TO THE SAID SOUTH LINE OF BLOCK 7—B. WHICH IS ASSUMED TO BEAR 588'01'00W. THE BEST OF MY KNOWLEDGE AND BELIEF, AS o 3. THIS DESCRIPTION AND SKETCH WAS PREPARED BY THE SIGNING SURVEYOR. HOWEVER THE SKETCH OF DESCRIBED AND DRAWN UNDER MY DIRECTION, AND .DESCRIPTION HAS BEEN INTEGRATED WITH A SURVEY PERFORMED FOR THE CITY OF MIAIMI BEACH OF THAT IT MEETS THE STANDARDS OF PRACTICE AS = FLAMINGO PARK. IMPROVEMENTS SHOWN HEREON ARE BASED UPON SAID SURVEY AND ARE FOR GEOGRAPHIC BOARD FORTHSET PY THE FLORIDA BY THE HESFAO RIDA STATE STETS mo REFERENCE PURPOSES ONLY. 4. THIS SKETCH OF DESCRIPTION IS NOT VALID WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF A IN CHAPTER FJ-17 FLORIDA ADMINISTRATIVE CODE, I FLORIDA LICENSED SURVEYOR AND MAPPER. PURSUANT TO SECTION 472.027 FLORIDA STATUES. a- 5. THE DESCRIPTION AND SKETCH OF DESCRIPTION IS NOT FULL AND COMPLETE WITHOUT SHEETS L-1 THROUGH �' c 3. � 1`-� 6, THIS DESCRIPTION AND SKETCH WAS PREPARED AT THE INSISTENCE OF AND CERTIFIED TO: e4 1L,�.ito o The School Board of Miami—Dole County Florida, its successors and/or assigns; s j Walter J. Harvey, Esq., School Board Attorney and his successors in office BRIAN T. BELLING DATE MANAGER Y CITY PROFESSIONALR SURVEYOR AND MAPPER NO 4973 I THE DESCRIPTION AND THE SKETCH K OF DESCRIPTION IS NOT FULL AND COMPLETE WITHOUT ALL SHEETS (L-1 THROUGH L-3.) ACCEPTED BY: REVISED TITLE: XXXXXXX FLAMINGO PARK BASEBALL AND _ 1 I PUBLIC WORKS DEPARTMENT SOFTBALL FIELDS L 1700 CONVENTION CENTER DRIVE.MIAMI BEACH.FL 33139 BRIAN T.BELYING CITY SURVEYOR DESCRIPTION BEING A PARCEL(S)OF LAND LYING IN A PORTION OF SECTION 34,TOWNSHIP 53 SOUTH, RANGE 42 EAST AND A PORTION OF"OCEAN BEACH FLA.ADDITION NO.3",ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 2, PAGE 81,OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA.ALL LYING IN THE CITY OF MIAMI BEACH,MIAMI-DADE COUNTY, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF BLOCK 7-B,"FIRST ADDITION TO WHITMANS SUBDIVISION OF ESPANOLA VILLAS",ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT BOOK 9,AT PAGE 147,PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA;THENCE SOUTH 88°01'01"WEST,ALONG THE SOUTH LINE OF SAID BLOCK 7-B FOR A DISTANCE OF 215.00 FEET;THENCE SOUTH 1°58'59"WEST,FOR A DISTANCE OF 8.50 FEET TO THE POINT OF BEGINNING OF THE PARCEL OF LAND HEREIN DESCRIBED;THENCE SOUTH 88°01'01" WEST,PARALLEL TO THE SOUTH LINE OF SAID BLOCK 7-B AND ITS WESTERLY EXTENSION, FOR A DISTANCE OF 203.00 FEET;THENCE NORTH 1°58'59" EAST, FOR A DISTANCE OF 8.50 FEET;THENCE SOUTH 88°01'01" WEST,ALONG THE WESTERLY EXTENSION OF THE ABOVE MENTIONED BLOCK 7-B, FOR A DISTANCE OF 191.00 FEET;THENCE NORTH 1°58"59" EAST, FOR A DISTANCE OF 8.50 FEET;THENCE SOUTH 88°01'01" WEST, PARALLEL TO THE WESTERLY EXTENSION OF THE SOUTH LINE OF SAID BLOCK 7-B, FOR A DISTANCE OF 49.00 FEET;THENCE SOUTH 1°58'59" EAST, PARALLEL TO THE CENTER LINE OF MICHIGAN AVENUE,FOR A DISTANCE OF 444.00 FEET.THENCE NORTH 89°23'28"EAST FOR A DISTANCE OF 219.00 FEET;THENCE NORTH 68°07'05" EAST FOR A DISTANCE OF 140.00 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT "A"; THENCE NORTH 39° 15'28" EAST FOR A DISTANCE OF 107.00 FEET;THENCE NORTH 6°39'50"EAST FOR A DISTANCE OF 138.50 FEET;THENCE NORTH 2°01'20"WEST FORA DISTANCE OF 167.26 FEET TO THE POINT OF BEGINNING. CONTAINING 179,474.5 SQUARE FEET OR 4.1 ACRES MORE OR LESS. TOGETHER WITH THE FOLLOWING DESCRIBED PARCEL: BEGIN AT AFORESAID POINT"A"; THENCE NORTH 39° 15'28'EAST FOR A DISTANCE OF 107.00 FEET; THENCE NORTH 88°54'50"EAST FOR A DISTANCE OF 166.22 FEET; THENCE SOUTH 01°04'46"EAST FOR A DISTANCE OF 293.61 FEET; THENCE SOUTH 47°56'57"EAST FOR A DISTANCE OF 31.31 FEET; THENCE SOUTH 42°37' 03"WEST FOR A DISTANCE OF 60.44 FEET; THENCE NORTH 48°37' 10"WEST FOR A DISTANCE OF 30.90 FEET; m THENCE SOUTH 89°24'52"WEST FOR A DISTANCE OF 278.06 FEET; THENCE NORTH 02°05'55"WEST FOR A DISTANCE OF 88.81 FEET; THENCE NORTH 22°15'16"EAST FORA DISTANCE OF 112.61 FEET; THENCE NORTH 32°41' 14"E FOR A DISTANCE OF 74.21 FEET TO THE POINT OF BEGINNING,SAID POINT ALSO REFERRED TO AS POINT"A". CONTAINING 92,960 SQUARE FEET OR 2.1 ACRES MORE OR LESS. a .0 a rR V c v .0 a 0 0. a 0,0 c E 0 to Y I THE DESCRIPTION AND THE SKETC OF DESCRIPTION IS NOT FULL AND COMPLETE WITHOUT ALL SHEETS (L-1 THROUGH L-3 ACCEPTED BY: REVISED TITLE: XXxxxxx FLAMINGO PARK BASEBALL AND L-2 PUBLIC WORKS DEPARTMENT SOFTBALL FIELDS 1700 CONVENTION CENTER DRIVE.MIAMI BEACH.FL 33139 BRIAN T.BELLINO CITY SURVEYOR • f I.I, j S88'01'01"W e1. 7-e I49.00 P.O.C. SOUTHEAST CORNER BLOCK 7-B'FIRST ADDITION r NOt 58'59"Evcsn r n� S01'58'59"W xVILLAS'11111AN'S SUBDIVISION of ESP,woVILLAS'EXTEN 8.50' SOUTH L1NE BLOCK 7-8 1 8.50' (a.e.9,Pc.147) "" S 88'01b1" W 215.00' 35' —I S88'01'01"W 191.00' NO1'58'59"E S88'0101"W 203.00 nl UNE BLOCK 7-8 E 8.50' ' P.O.B. ... z 0 ni O I N Q. j I. O I { z a` I 0 W a 0) '? 3 LO • LO N 179474.5 SQ.FT. 1 4.1 ACRESro z N88'54'50"E 166.22' w w 0 z �^ > az POINT "A" ,w1 a ti� `- z I CD _e 1 _ U `v: w 1000 \K ON NOS01 ^1,^ O N89'23'28"E 219.00' mal 92960 SQ.FT. m N 2.1 ACRES N ceW a O to co g2� Z O c , S47'56'57"E I S42'3T03"W 31.31' 9 Ts tr. 0D S89'24'S2"W 278.06' " N48'3T10"W 1 0 30.90' 8 m 0 m %0 a . LEGEND SKETCH OF DESCRIPTION E j E CENTERLINE SCALE:1"=100' (8.5"X11" SHEET) x PB PLAT BOOK PG PAGE P.O.B. POINT OF BEGINNING P.O.C. POINT OF COMMENCEMENT THE K OFDESCRIPTION ONI A NO THE ULLSKETCH AND COMPLETE WITHOUT ALL SHEETS (L-1 THROUGH L-3.) YACCEPTED BY. REVISED TITLE: XXXXXXX FLAMINGO PARK BASEBALL AND c PUBLIC WORKS DEPARTMENT SOFTBALL FIELDS L-3 j 1700 CONVENTION CENTER DRIVE MIAMI BEACH.FL.33139 BRIAN T.BELLINO CITY SURVEYOR _