Agreement with South Florida Seniors in Action, Inc. O(X- 3o173
LICENSE AGREEMENT BETWEEN THE
CITY OF MIAMI BEACH, FLORIDA
AND
SOUTH FLORIDA SENIORS IN ACTION, INC.
FOR THE USE OF SOUTH SHORE COMMUNITY CENTER
AUDITORIUM FOR SENIOR CITIZEN ACTIVITIES
THIS AGREEMENT made the 19 day of , 2018, between the CITY OF
MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter called "City"),
having its principal address at 1700 Convention Center Drive, Miami Beach, Florida,
33139, and SOUTH FLORIDA SENIORS IN ACTION, INC., a Florida not-for-profit
corporation, with offices at 833 6th Street, Miami Beach, Florida, 33139 (hereinafter called
"Licensee").
WITNESSETH
WHEREAS, the City and Licensee have negotiated the following License Agreement; and
WHEREAS, said License Agreement is for an initial term of one (1) year and seven (7)
months, commencing on March 1, 2018, and ending on September 30, 2019.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
The City hereby grants to the Licensee, and the Licensee hereby accepts from the City,the
right to use the following described License Area, as defined below, in conformance with
the purposes and for the period stated herein and subject to all the terms and conditions
herein contained and fairly implied by the terms hereinafter set forth.
SECTION 1. TERM.
1.1 It is the intent of the parties hereto that the term of this Agreement, including
any renewal terms, is to run concurrent with the term of that certain Lease
Agreement between the City of Miami Beach and South Florida Seniors in
Action, Inc., dated October 4, 2016 (hereinafter, the "Lease Agreement").
Accordingly, this License Agreement shall be for an initial term of one (1)
year and seven (7) months, commencing on March 1, 2018 (the
"Commencement Date"), and ending on the 30th day of September, 2019.
For purposes of this Agreement, and including,without limitation, Subsection
1.2 below, a "contract year" shall be defined as that certain period
commencing on the 1st day of March, and ending on the 28th day of
February.
SECTION 2. LICENSE AREA.
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The City hereby grants to the Licensee the non-exclusive right, during the Term herein, to
utilize, solely for the limited purposes specified in this Agreement, the facility and space
comprised of 2,792 square feet in the public auditorium room ("License Area") within the
South Shore Community Center, a/k/a the 6th Street Community Center, located at 833
Sixth Street, Miami Beach, Florida, 33139 (the "Building"); and as further delineated in
"Exhibit 1" hereto
SECTION 3. USE(S).
3.1 Licensee is hereby authorized to use the License Area, at its sole expense
and responsibility, solely for the purpose of providing activities to senior
citizens on the days and times below:
Monday:
2PM — 3PM Flamenco
3PM —4PM Pre-Ballet
4PM — 5PM Zumba
5PM —6PM Tai-Chi
Tuesday:
2PM —4PM Chorus Classes
4PM — 5PM Guitar
5PM —6PM Teacher Planning Time
Wednesday:
2PM —4PM Arts & Craft
4PM —6PM Music &Theater
Thursday:
2PM —4PM Chorus Classes
4PM — 5PM Zumba
5PM —6PM Tai-Chi
Friday:
2PM —4PM Pre-Ballet
4PM —6PM Dance Studio
Licensee's use of the License Area shall be subject to and contingent upon
Licensee maintaining its not-for-profit status in full force and effect, and in
good standing, throughout the Term herein.
3.2 City Business Tax Receipts.
Licensee shall obtain, at its sole expense and responsibility,any business tax
receipts required by the City, as amended from time to time,for the proposed
use(s) contemplated in this Section 3. To the extent required by City law, as
same may be amended from time to time, business tax receipts shall be
obtained for each proposed use within a particular License Area.
SECTION 4. LICENSE FEES.
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4.1 Base Fee.
Base Fee for the License Area shall begin to accrue on March 1, 2018 (the
Commencement Date).
4.1.1 Throughout the Term herein, the Base Fee for use of the License
Area shall be One Dollar and Twenty Cents($1.20) per year, payable
by Licensee monthly, commencing on the Commencement Date and,
thereafter, on each first day of subsequent months.
4.1.2 Concurrent with the payment of the Base Fee, Licensee(if applicable)
shall also include any and all additional sums for all applicable sales
and use tax, now or hereafter prescribed by Federal, State or local
law.
4.2 Additional Fee.
In addition to the Base Fee, as set forth in Section 4.1, Licensee shall also
pay the following Additional Fee as provided below:
4.2.1 Operating Expenses.
Licensee shall pay Four Hundred Forty Six Dollars and 49/100
($430.33) per month, for its proportionate share (pro rata share) of
"Operating Expenses" for the Common Facilities, which are defined
as follows:
"Operating Expenses" shall mean the following costs and expenses
incurred in operating, repairing, and maintaining the Common
Facilities (as hereinafter defined) and shall include electrical service,
water service, sewer service, stormwater costs and janitorial service
to the Building (including the License Area).
"Common Facilities" shall mean all Building areas, spaces,
equipment, as well as certain services, available for use by or for the
benefit of Licensee and/or its employees, agents, servants,
volunteers, customers, guests and/or invitees (including the License
Area).
Irrespective of the items listed above, amounts due by Licensee for
Operating Expenses for the Common Facilities, will be determined
based on Licensee's pro rata share, as calculated in this subsection.
"Pro-rata share"shall mean the percent which the License Area bears
to the total square footage of usable space within the Building, which
share is hereby agreed to be 5.506%. Licensee agrees and
understands that the actual costs incurred for Operating Expenses
may increase or decrease for any number of reasons and, as such,
amounts due from Licensee for Operating Expenses for the Common
Facilities shall increase or decrease accordingly
4.2.2 Property Taxes.
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The Property Tax Payment shall be payable by Licensee, in
accordance with Subsection 7.3 herein.
4.2.3 Insurance.
Intentionally Omitted.
4.3 Interest for Late Payment.
Any payment which Licensee is required to make to City which is not paid on
or before the respective date provided for in this Agreement shall be subject
to interest at the rate of twelve (12%) percent per annum, from the due date
of payment until such time as payment is actually received by the City.
4.4 Sales and UseTax.
It is also understood that the required Florida State Sales and Use Tax for
use of the License Area shall be added to Licensee's payments to the City,
and shall be forwarded to the City as part of said payments. It is the City's
intent that it is to receive all payments due from Licensee as net of such
Florida State Sales and Use Tax.
4.5 Location for Payments.
All rents, fees or other payments due hereunder shall be paid to the City at
the following address:
City of Miami Beach
Revenue Manager
1700 Convention Center Drive, 3rd Floor
Miami Beach, Florida 33139
or at such other address as the City may, from time to time, designate in
writing.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Licensee shall maintain current, accurate, and complete financial records, on an accrual
basis, of accounting related to its operations pursuant to this Agreement. Systems and
procedures used to maintain these records shall include a system of internal controls and
all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit, by the City Manager or his
designee, upon reasonable prior request and during normal business hours. Such records
and accounts shall include a breakdown of gross receipts, expenses, and profit and loss
statements. Such records shall be maintained as would be required by an independent
CPA in order to audit a statement of annual gross receipts and profit and loss statement
pursuant to generally accepted accounting principles.
SECTION 6. INSPECTION AND AUDIT.
Licensee shall maintain its financial records pertaining to its operations for a period of three
(3) years after the conclusion of any contract year and such records shall be open and
available to the City Manager or his designee, as deemed necessary by them. Licensee
shall maintain all such records at its principal office, currently located at 833 6th Street,
Miami Beach, Florida, 33139, or, if moved to another location, all such records shall be
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relocated, at Licensee's expense,to a location in Miami Beach,within ten (10)days'written
notice from the City.
The City Manager or his designee shall be entitled to audit Licensee's records pertaining to
its operations as often as they deem reasonably necessary throughout the term of this
Agreement, and three(3)times within the three(3)year period following termination of the
Agreement, regardless of whether such termination results from the natural expiration of
the term or for any other reason. The City shall be responsible for paying all costs
associated with such audits.
It is Licensee's intent to stay informed of comments and suggestions by the City regarding
Licensee's performance under the Agreement. Within thirty(30)days after the end of each
contract year, Licensee and City may meet to review Licensee's performance under the
Agreement for the previous contract year. At the meeting, Licensee and City may discuss
quality, operational, maintenance and any other issues regarding Licensee's performance
under the Agreement.
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
7.1 Licensee agrees to and shall pay before delinquency all taxes and
assessments of any kind assessed or levied upon Licensee by reason of this
Agreement or by reason of the business or other activities of Licensee upon
or in connection with the License Area. Licensee will have the right, at its
own expense,to contest the amount or validity, in whole or in part, of any tax
and/or assessment by appropriate proceedings diligently conducted in good
faith. Licensee may refrain from paying a tax or assessment to the extent it is
contesting the assessment or imposition of same in a manner that is in
accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, Licensee shall be responsible
for such delinquency charges, in addition to payment of the contested tax
and/or assessment if so ordered.
Licensee shall also pay for any fees imposed by law for licenses or permits
for any business or activities of Licensee upon the License Area under this
Agreement.
7.2 Licensee's Responsibilities for Utilities (not included within Operating
Expenses).
Licensee is solely responsible for, and shall promptly pay when due, all
charges and impact fees for any and all utilities for the License Area NOT
included as an Operating Expense (pursuant to Subsection 4.2.1), if any.
In addition to other rights and remedies hereinafter reserved to the City, upon
the failure of Licensee to pay for such utility services(as contemplated in this
Subsection 7.2) when due, the City may elect, at its sole discretion, to pay
same, whereby Licensee agrees to promptly reimburse the City upon
demand.
In no event, however, shall the City be liable, whether to Licensee or to third
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parties,for an interruption or failure in the supply of any utilities or services to
the License Area.
7.3 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 above,the parties agree that the operations
contemplated herein are for public purposes and, therefore, no ad valorem
taxes should be assessed by the Miami-Dade County Tax Appraiser.
However, if said taxes are assessed, Licensee shall be solely responsible for
prompt and timely payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
In connection with the performance of its responsibilities hereunder, Licensee may hire its
own employees and/or independent contractors, who will be employees and/or
independent contractors of Licensee and not of the City. Licensee shall select the number,
function, qualifications, compensation, including benefits(if any), and may,at its discretion
and at any time, adjust or revise the terms and conditions relating to such employees
and/or independent contractors.
SECTION 9. HOURS OF OPERATION.
The License Area shall be open for operation a minimum of five (5) days a week, with
normal hours of operation being from Monday through Friday, from 2:00 PM to 6:00 PM.
Licensee shall not otherwise modify the days or hours of operation, or the programming
uses specified in this Agreement, without the prior written approval of the City Manager.
Nothing herein contained shall be construed to authorize hours or uses contrary to the laws
governing such operations.
SECTION 10. IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION.
Licensee accepts the use of the License Area in its "AS IS" "WHERE IS" condition.
Licensee assumes sole responsibility and expense for maintenance of the License Area
(including all equipment and improvements thereon). Maintenance shall include daily
removal of litter, garbage and debris. Licensee shall also be responsible for all garbage
disposal generated by its operation.
10.1 Improvements.
10.1.1 Any improvements to the License Area shall be at Licensee's sole
expense and responsibility; provided, however, that any plans for
such improvements shall be submitted to the City Manager or his
designee for their prior written approval. All permanent (fixed)
improvements to the License Area shall remain the property of the
City upon termination and/or expiration of this Agreement. Upon
termination and/or expiration of this Agreement, all personal property
and non-permanent trade fixtures may be removed by Licensee
without damage to the License Area or the Building. Licensee will
permit no liens to attach to the License Area or the Building arising
from, connected with, or related to the design and construction of any
improvements. Moreover, any permitted construction shall be
accomplished through the use of licensed, reputable contractors who
are acceptable to the City Manager or his designee. Any and all
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permits and or licenses required for the installation of improvements
shall be the sole expense and responsibility of Licensee.
10.1.2 Notwithstanding Subsection 10.1.1 herein, upon termination and/or
expiration of this Agreement, and at the City's sole option and
discretion, any and all alterations or additions made by Licensee to or
in the License Area shall, upon demand by the City Manager or his
designee, be promptly removed by Licensee at its sole expense and
responsibility, and Licensee further hereby agrees, in such event, to
restore the License Area or the Building to its original condition prior
to the Commencement Date of this Agreement.
10.1.3 The above requirements for submission of plans and the use of
specific contractors shall not apply to improvements (which term, for
purposes of this subsection 10.1.3 only, shall also include
improvements necessary for Licensee's ongoing maintenance and
repair of the License Area) which do not exceed Five Hundred
($500.00) Dollars; provided that the work is not structural, and
provided further that it is permitted by applicable law.
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, the Licensee shall
provide, at its sole cost and expense, receptacles within the confines of the
License Area and shall provide a sufficient number of these receptacles for
its own use and for the use of the public. Disposal of the contents of said
receptacles and removal of litter, garbage and debris within the License
Area, shall be done on a daily basis, and shall be the sole responsibility of
the Licensee.
10.3 Maintenance/Repair.
Licensee shall be responsible for reimbursing the City for any repair,
restoration or replacement of any equipment,fixtures,and furnishings(EFF),
if such repair or replacement of EFF is due to any acts or omissions of
Licensee or its invitees, or any damage caused by Licensee or its invitees. In
the event any EFF is lost, stolen, or damaged, it shall be replaced or repaired
at the sole expense of Licensee.
10.3.1 Licensee shall be responsible for reimbursing the City for any repairs
to all interior walls and the interior and exterior of all windows and
doors, as well as immediate replacement of any and all plate glass or
other glass in the License Area caused by Licensee or its invitees,
which may become broken, using glass of the same or better quality.
The City shall be responsible for the maintenance of the roof, the
structural exterior of the Building, and the exterior structural electrical
and plumbing(not interior electrical and/or plumbing surrounding any
sink within the License Area).
10.3.2 All damage or injury of any kind to the License Area caused by
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Licensee or its invitees, and/or to its respective fixtures, glass,
appurtenances, and EFF, except damage caused by the willful
misconduct or gross negligence of the City, shall be the sole
obligation of Licensee, and shall be repaired, restored or replaced
promptly by Licensee, at its sole expense and to the satisfaction of
the City Manager or his designee.
10.3.3 All sums spent and expenses incurred by the City for repairs,
restorations or replacements pursuant to this Agreement shall be
collectable by the City and shall be paid by Licensee within ten (10)
days after rendition of a bill or statement thereof.
10.4 No Dangerous Materials.
Licensee agrees not to use or permit in the License Area the storage and/or
use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible
powered electricity producing generators, turpentine, benzene, naphtha,
propane, natural gas, or other similar substances, combustible materials, or
explosives of any kind, or any substance or thing prohibited in the Standard
policies of fire insurance companies in the State of Florida. Any such
substances or materials found within the License Area shall be immediately
removed.
Licensee shall indemnify and hold the City harmless from any loss,damage,
cost, or expense of the City, including, without limitation, reasonable
attorney's fees, incurred as a result of, arising from, or connected with the
placement by Licensee of any "hazardous substance" or "petroleum
products"on, under, in or upon the License Area as those terms are defined
by applicable Federal and State Statutes, or any environmental rules and
environmental regulations promulgated thereunder; provided, however,
Licensee shall have no liability in the event of the willful misconduct or gross
negligence of the City, its agents, servants or employees. The provisions of
this subsection 10.4 shall survive the termination or earlier expiration of this
Agreement.
10.5 Security.
Licensee shall be responsible for and provide such reasonable security
measures as may be required to protect the License Area and any EFF
thereon. Under no circumstances shall the City be responsible for any stolen
or damaged EFE, nor shall the City be responsible for any stolen or
damaged personal property of Licensee's employees, contractors, patrons,
guests, invitees, and/or other third parties.
10.6 Inspection.
Licensee agrees that the License Area and operation may be inspected at
any time during hours of operation by the City Manager or his designee, or
by any other Municipal, County or State officer, or other agency having
responsibility and/or jurisdiction for inspections of such operations. Licensee
hereby waives all claims against the City for compensation for loss or
damage sustained by reason of any interference with the License Area
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operation by any public agency or official in enforcing their duties or any laws
or ordinances. Any such interference shall not relieve Licensee from any
obligation hereunder.
SECTION 11. INSURANCE.
Licensee shall maintain, at its sole expense and responsibility, the following types of
insurance coverage at all times throughout the Term:
a. Comprehensive General Liability in the minimum amount of One Million
($1,000,000.00) Dollars (subject to adjustment for inflation) per occurrence
for bodily injury and property damage. This policy must also contain
coverage for premises operations, products and contractual liability.
b. Workers Compensation Insurance shall be required in accordance with the
laws of the State of Florida.
c. If any Improvements proposed by Licensee are approved by the City
pursuant to Section 10, Licensee shall provide All-Risk property and casualty
insurance,written at a minimum of eighty(80%)percent of replacement cost
value and with replacement cost endorsement, covering all improvements
installed in the License Area by or on behalf of Licensee and including
without limitation all of Licensee's personal property in the License Area
(including, without limitation, inventory, trade fixtures, floor coverings,
furniture, and other property removable by Licensee under the provisions of
this Agreement).
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee. Prior to the Commencement Date of this Agreement, Licensee shall
provide the City with a Certificate of Insurance for each such policy.ALL POLICIES
SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL
NAMED INSURED. All such policies shall be obtained from companies authorized
to do business in the State of Florida with an A.M. Best's Insurance Guide (latest
edition) rating acceptable to the City's Risk Manager, and any replacement or
substitute company shall also be subject to the approval of the City's Risk Manager.
Should Licensee fail to obtain, maintain or renew the policies of insurance referred
to above, in the required amounts, the City may, at its sole discretion, obtain such
insurance, and any sums expended by the City in obtaining said insurance,shall be
repaid by Licensee to the City, plus ten (10%) percent of the amount of premiums
paid to compensate the City for its administrative costs. If Licensee fails to repay the
City's expenditures within fifteen (15) days of demand, the total sum owed shall
accrue interest at the rate of twelve(12%) percent until paid, and such failure shall
be deemed an event of default hereunder.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of Ten ($10.00)
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Dollars and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Licensee shall indemnify, hold harmless
and defend the City, its agents, servants and employees from and against
any claim, demand or cause of action of whatsoever kind or nature arising
out of error, omission, or negligent act of Licensee, its subLicensee(s),
agents, servants or employees in the performance of services under this
Agreement.
12.2 In addition, and in consideration of a separate and specific consideration of
Ten ($10.00) Dollars and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Licensee shall indemnify,
hold harmless and defend the City, its agents, servants and employees from
and against any claim, demand or cause of action of whatever kind or nature
arising out of any misconduct of Licensee not included in Subsection 12.1
herein and for which the City, its agents, servants or employees are alleged
to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however,to any such
liability,that arises as a result of the willful misconduct or gross negligence of
the City, its agents, servants or employees.
12.4 Subrogation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Licensee, the City and their respective officers,
employees and agents.
12.5 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action by
the City or Licensee,as applicable, The City or Licensee, as applicable, shall
not be liable or responsible for, and there shall be excluded from the
computation of such period of time, any delays due to strikes, riots, acts of
God, shortages of labor or materials,war, or governmental laws, regulations,
or restrictions in the nature of a prohibition or moratorium, or any bona fide
delay beyond the reasonable control of Landlord or Tenant, as applicable.
The foregoing shall not apply to any payments of money due under this
Agreement.
12.6 Waiver of Loss from Hazards.
Licensee hereby expressly waives all claims against the City for loss or
damage sustained by the Licensee resulting from an event of Force Majeure,
and the Licensee hereby expressly waives all rights, claims, and demands
against the City and forever releases and discharges the City of Miami
Beach, Florida, from all demands, claims, actions and causes of action
arising from any of the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shall constitute events of default under this Agreement. An
event of default by Licensee shall entitle the City to exercise any and all remedies
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described as the City's remedies under this Agreement, including but not limited to those
set forth in Subsection 13.4 and Section 14. An event of default by the City shall entitle
Licensee to exercise any and all remedies described as Licensee's remedies under this
Agreement, including but not limited to those set forth in Subsection 13.5.
13.1 Bankruptcy.
If either the City or Licensee shall be adjudged bankrupt or insolvent, or if
any receiver or trustee of all or any part of the business property of either
party shall be appointed, or if any receiver of all or any part of the business
property shall be appointed and shall not be discharged within sixty(60)days
after appointment, or if either party shall make an assignment of its property
for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or
insolvency, or shall apply for reorganization or arrangement with its creditors
under the bankruptcy or insolvency laws now in force or hereinafter enacted,
Federal, State, or otherwise, or if such petitions shall be filed against either
party and shall not be dismissed within sixty(60) days after such filing, then
the other party may immediately, or at any time thereafter, and without
further demand or notice, terminate this Agreement without being prejudiced
as to any remedies which may be available to it for breach of contract.
13.2 Default in Payment.
In the event Licensee fails to submit any payment within five (5) days of its
due date, there shall be a late charge of Fifty ($50.00) Dollars per day for
such late payment, in addition to interest at the highest rate allowable by law
(currently 12% per annum). If any payment and accumulated penalties are
not received within fifteen (15) days after the payment due date, and such
failure continues three (3) days after written notice thereof, then the City
may, without further demand or notice, terminate this Agreement without
being prejudiced as to any remedies which may be available to it for breach
of contract; and may begin procedures to collect the Performance Bond
required in Section 14 herein.
13.3 Non-Monetary Default.
In the event that Licensee or the City fails to perform or observe any of the
covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting party may immediately or at any time thereafter,
and without further demand or notice, terminate this Agreement without
being prejudiced as to any remedies which may be available to it for breach
of contract. In the event that a default is not reasonably susceptible to being
cured within such period, the defaulting party shall not be considered in
default if it shall, within such period, commence with due diligence and
dispatch to cure such default and thereafter completes with dispatch and due
diligence the curing of such default, but in no event shall such extended cure
period exceed ninety(90) days from the date of written notice thereof. In the
event Licensee cures any default pursuant to this subsection, it shall
promptly provide the City with written notice of same.
13.4 City's Remedies for Licensee's Default.
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If any of the events of default, as set forth in this Section, shall occur, the
City may, after notice (if required) and the expiration of cure periods, as
provided above, at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such defaults and to compensate the
City for damages resulting from such defaults, including but not limited to the
right to give to Licensee a notice of termination of this Agreement. If such
notice is given, the term of this Agreement shall terminate upon the date
specified in such notice from the City to Licensee. On the date so specified,
Licensee shall then quit and surrender the License Area to the City pursuant
to the provisions of Subsection 13.7. Upon the termination of this Agreement,
all rights and interest of Licensee in and to the License Area and to this
Agreement, and every part thereof, shall cease and terminate and the City
may, in addition to any other rights and remedies it may have, retain all sums
paid to it by Licensee under this Agreement. In addition to the rights set forth
above, the City shall have the rights to pursue any and all of the following:
a. the right to injunction or other similar relief available to it under Florida
law against Licensee; and/or
b. the right to maintain any and all actions at law or suits in equity or
other proper proceedings to obtain damages resulting from Licensee's
default.
13.5 If an event of default, as set forth in this Section, by the City shall occur,
Licensee may, after notice(if required)and the expiration of the cure periods,
as provided above, at its sole option and discretion, terminate this
Agreement upon written notice to the City and/or sue for damages. Said
termination shall become effective upon receipt of a written notice of
termination by the City, but in no event shall Licensee specify a termination
date that is less than sixty(60) days from the date of the written termination
notice. On the date specified in the notice, Licensee shall quit and surrender
the License Area to the City pursuant to the provisions of Subsection 13.7.
13.6 Termination for Convenience.
13.6.1 Notwithstanding the provisions of this Section 13, this
Agreement may be terminated by either party,without cause and
for convenience at any time during the Term (including any
renewal term), upon the furnishing thirty(30)days written notice
to the other party.
13.6.2 In the event of termination by the City pursuant to this subsection,
Licensee herein acknowledges and agrees that it shall not have any
claim, demand, or cause of action of whatsoever kind or nature,
against the City, its agents, servants and employees (including, but
not limited to, claims for interference in business or damages for
interruption of services or interference in its License operations).
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13.7 Surrender of License Area.
At the expiration of this Agreement, or earlier termination in accordance with
the terms of this Agreement, Licensee shall surrender the License Area in
the same condition as the License Area was prior to the Commencement
Date of this Agreement, reasonable wear and tear excepted. Licensee shall
remove all its personal property, upon forty-eight (48) hours written notice
from the City Manager or his designee unless a longer time period is agreed
to by the City. Licensee's obligation to observe or perform this covenant shall
survive the expiration or other termination of this Agreement. Continued
occupancy of the License Area after termination of the Agreement shall
constitute trespass by the Licensee, and may be prosecuted as such. In
addition, the Licensee shall pay to the City One Thousand ($1,000.00)
Dollars per day as liquidated damages for such trespass and holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Intentionally Omitted.
SECTION 15. ASSIGNMENT.
Intentionally Omitted.
SECTION 16. SPECIAL EVENTS/CITY USE(S) OF LICENSE AREA.
16.1 Licensee's proposed use(s), as defined in Section 3 herein, do not
contemplate the production, promotion or sponsorship by Licensee of special
events in any portion of the License Area. If Licensee desires to use all
and/or part of the License Area for any purpose not contemplated in Section
3, or in addition to the days and hours delineated in Section 9 herein,
Licensee agrees it shall abide by the City's rules and regulations for the
rental of City owned facilities, as same may be amended from time to time.
For any use, other than those provided for in this Agreement, a facilities
rental agreement may be required and shall be obtained through the City's
Department of Parks & Recreation.
16.2 City Use(s) of License Area.
Notwithstanding Subsection 16.1 above, and in the event that the City, at its
sole discretion, deems that it would be in the best interest of the City,the City
reserves the right to displace the Licensee for City and/or Miami-Dade
County events and/or activities (any such City use of the License Area is
hereinafter referred to as a City Use or City Uses). Additionally, a City Use
and/or City Uses may also require additional time for load-in and load-out of
the event. In such cases, the City may require that the Licensee cease
operations during the term of, and/or in the area of, the City Use(s). If the
Licensee is not required to close, or the City Manager or his designee
determines that Licensee may remain open in such a manner as prescribed
by the City that will not interfere with the City Use(s).
16.3 Notwithstanding anything to the contrary, if City Use(s) occur in all or any
portion of any License Area, Licensee shall not be liable for any charge, fee
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or other expense, governmental or otherwise, in connection with such City
Use(s).
SECTION 17. NO IMPROPER USE.
Licensee will not use, nor suffer or permit any person to use in any manner whatsoever,
the License Area for any improper, immoral or offensive purpose, or for any purpose in
violation of any Federal, State, County, or Municipal ordinance, rule, order or regulation, or
of any governmental rule or regulation now in effect or hereafter enacted or adopted.
Licensee will protect, indemnify, and forever save and keep harmless the City, its agents,
employees and contractors from and against damage, penalty,fine,judgment, expense or
charge suffered, imposed, assessed or incurred for any violation, or breach of any law,
ordinance, rule, order or regulation occasioned by any act, neglect or omission of Licensee,
Sublicensee, or any employee or agent regarding the License. In the event of any violation
by Licensee or if the City or its authorized representative shall deem any conduct on the
part of Licensee to be objectionable or improper, the City shall have the right to suspend
the operation of the License should the Licensee fail to correct any such violation,conduct,
or practice to the satisfaction of the City within twenty-four(24)hours after receiving written
notice of the nature and extent of such violation, conduct, or practice, such suspension to
continue until the violation is cured. Licensee further agrees not to commence operation
during the suspension until the violation has been corrected to the satisfaction of the City.
SECTION 18. PRICE SCHEDULES.
Intentionally Omitted.
SECTION 19. NOTICES.
All notices from the City to Licensee shall be deemed duly served upon receipt, if mailed by
registered or certified mail with a return receipt to Licensee at the following address:
Sixto Acea, President
South Florida Seniors in Action, Inc.
833 6th Street
Miami Beach, Florida 33139
All notices from Licensee to the City shall be deemed duly served upon receipt, if mailed by
registered or certified mail return receipt requested to the City of Miami Beach at the
following addresses:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to:
Asset Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
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Licensee and the City may change the above mailing address at any time upon giving the
other party written notification. All notices under this Agreement must be in writing.
SECTION 20. LAWS.
20.1 Compliance.
Licensee shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules and regulations (including but not limited to all
applicable environmental City, County, State, and Federal ordinances,
statutes, rules and regulations subject to the provisions of Subsection 10.4
herein).
20.2 Equal Employment Opportunity.
Neither Licensee nor any affiliate of Licensee performing services hereunder,
or pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual
orientation, and disability, as defined in Title I of ADA. Licensee will take
affirmative steps to utilize minorities and females in the work force and in
correlative business enterprises.
20.3 No Discrimination.
Licensee shall not discriminate against any employee, applicant for
employment, vendor, or invitee because of actual or perceived race, color,
national origin, religion, sex, intersexuality, gender identity, sexual
orientation, marital and familial status, age, disability, ancestry, height,
weight, domestic partner status, labor organization membership, familial
situation, or political affiliation. Further, Licensee shall comply with the City
of Miami Beach Human Rights Ordinance, set forth in Chapter 62 of the City
Code, as may be amended from time to time, prohibiting discrimination in
employment, housing, public accommodations, and public services on
account of actual or perceived race, color, national origin, religion, sex,
intersexuality, gender identity, sexual orientation, marital and familial status,
age, disability, ancestry, height, weight, domestic partner status, labor
organization membership, familial situation, or political affiliation.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Licensee.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto. Licensee acknowledges that no
modification to this Agreement may be agreed to by the City unless approved
by the Mayor and City Commission except where such authority has been
expressly provided herein to the City Manager or his designee.
21.3 Complete Agreement.
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This Agreement,together with all exhibits incorporated hereto, constitutes all
the understandings and agreements of whatsoever nature or kind existing
between the parties with respect to Licensee's operations, as contemplated
herein.
21.4 Headings.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
21.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
21.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
21.7 Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement as so modified shall.
21.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours
of operation, have the right to enter into and upon any and all parts of the
License Area for the purposes of examining the same for any reason relating
to the obligations of parties to this Agreement.
21.9 Nota Lease.
It is expressly understood and agreed that pursuant to this Agreement, no
part of the License Area or the Building, or any part, parcel, building,
structure, equipment or space is leased to the Licensee;that this Agreement
is solely in the nature of a license or use agreement, and is not a lease, and
in no event shall this Agreement be construed to confer any legal or
equitable interest of any kind whatsoever in the License Area or the Building.
The Licensee's license to use the License Area shall continue only so long
as this Agreement remains in effect, and provided further that Licensee
complies with the undertakings, provisions, agreements, stipulations and
16
conditions of this Agreement.
21.10 Signage.
Licensee shall provide, at its sole expense and responsibility, any required
signs at its License. All advertising, signage and postings shall be approved
by the City, and shall be in accordance with all applicable Municipal, County,
State and Federal laws and regulations. Any signage posted by Licensee
shall be subject to the prior approval of the City as to size, shape and
placement of same.
21.11 Conflict of Interest.
Licensee shall perform its services under this Agreement and conduct the
License operation contemplated herein, in a manner so as to show no
preference for other License operations/facilities owned, operated, managed,
or otherwise controlled by Licensee with regard to its responsibilities
pursuant to this Agreement.
21.12 No Waiver.
21.12.1 It is mutually covenanted and agreed by and between the parties
hereto that the failure of the City to insist upon the strict performance
of any of the conditions, covenants, terms or provisions of this
Agreement, or to exercise any option herein conferred, will not be
considered or construed as a waiver or relinquishment for the future
of any such conditions, covenants, terms, provisions or options but
the same shall continue and remain in full force and effect.
21.12.2 A waiver of any term expressed herein shall not be implied by any
neglect of the City to declare a forfeiture on account of the violation of
such term if such violation by continued or repeated subsequently and
any express waiver shall not affect any term other than the one
specified in such waiver and that one only for the time and in the
manner specifically stated.
21.12.3 The receipt of any sum paid by Licensee to the City after breach of
any condition, covenant, term or provision herein contained shall not
be deemed a waiver of such breach, but shall be taken, considered
and construed as payment for use and occupation, and not as rent,
unless such breach be expressly waived in writing by the City.
21.13 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including,
but not limited to sublicensees, other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies by
reason of this Agreement.
21.14. Prohibition regarding sale or use of expanded polystyrene food service
articles or plastic straws. Pursuant to Section 82-7 of the City Code, as may
be amended from time to time, effective August 2, 2014, the City has
17
prohibited selling, using, providing food in, or offering the use of expanded
polystyrene food service articles by City contractors or special event
permittees in City facilities or on City property. Additionally, pursuant to
Section 82-385 (p) of the City Code, as may be 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.
Licensee agrees not to sell, use, provide food in, or offer the use of
expanded polystyrene food service articles at the License Area or in
connection with this License. Licensee shall ensure that any persons or
entities operating in the License Area abide by the restrictions contained in
this section. A violation of this section shall be deemed a default under the
terms of this License. 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 Licensee or its invitees. Additionally,
Licensee 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 or for any business to provide plastic straws with the
service or delivery of any beverage to patrons on the beach.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the management and operation of the
License Area in the hands of a private management entity only if so doing the City can
place a limit on its liability for any cause of action for breach of this Agreement, so that its
liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars.
Licensee hereby expresses its willingness to enter into this Agreement with a Ten
Thousand ($10,000.00) Dollar limitation on recovery for any action for breach of contract.
Accordingly, and in consideration of the separate consideration of Ten Thousand
($10,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be
liable to Licensee for damages to Licensee in an amount in excess of Ten Thousand
($10,000.00) Dollars,for any action for breach of contract arising out of the performance or
non-performance of any obligations imposed upon the City by this Agreement. Nothing
contained in this paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section
768.28.
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SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall be
enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party
with respect to the enforcement of any and all the terms or conditions herein, exclusive
venue for the enforcement of same shall lie in Miami-Dade County, Florida. THE CITY
AND LICENSEE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND LICENSEE
MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY
MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSE
AREA.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest: ^ CITY OF MIAMI BEACH, FLORIDA
411 ....... _
Ai 341 Y,......L.,.°I ' . 4.. _,,e _f-Z:le........,...
afael Gran- • T I :,- . iy Dan Gelber, MAYOR
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Attest: \��CRP ' ''` ot
SOUTH FLORIDA SENIORS
• ••�,' , IN ACTION, INC.
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Si na"lure/Secretary Sixto A cea, 'resident
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Print Name
CORPORATE SEAL
(affix seal here)
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(01-16-18).doc
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