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JOINT USE AGREEMENT between THE SCHOOL BOARD OF MIAMI DADE COUNTY and THE CITY OF MIAMI BEACH DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 �01C�t C� JOINT USE AGREEMENT [Relating to Use of South Pointe Elementary - Basketball Courts] THIS JOINT USE AGREEMENT ("Agreement"), made and entered into this 22,4- day of , 202c), between THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, a body corporate and politic existing under the laws of the State of Florida (the "BOARD"), and the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (the "CITY'). The BOARD and CITY are sometimes referred to in this Agreement individually as "Party" and collectively as the"Parties". WITNESSETH WHEREAS, the BOARD and CITY are mutually interested in and concerned with providing and making available recreational programs, activities and facilities for the use and benefit of the students of Miami-Dade County Public Schools (the "District") and residents of the CITY; and WHEREAS, the BOARD owns and has under its jurisdiction certain real property known as South Pointe Elementary School, located at 1050 4' Street. Miami Beach, Florida 33139 ("School"); and WHEREAS, the City has approached the BOARD with a request to use the School basketball courts for the CITY'S recreational programs; and WHEREAS, as a pre-condition to commencement of this Agreement. the CITY has agreed to install fencing, and security cameras within the DEMISED AREA (as hereinafter defined), all at the CITY's sole cost and expense; and WHEREAS, the Parties are desirous of entering into this Agreement to allow their respective use of the School basketball courts for recreational purposes, under the terms and conditions as set forth below; and WHEREAS, The School Board of Miami-Dade County, Florida, at its meeting of September 9 , 20 20 , School Board Agenda item F 9 , Board Action # approved entering into this Agreement; and WHEREAS, the City of Miami Beach, by the adoption of Resolution No. 2c19 31059 , at its meeting of October 16 20 19approved this Agreement. NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), restrictions and covenants herein contained and other good and valuable consideration, Page 1 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 the receipt and sufficiency of which is hereby acknowledged, the BOARD and CITY agree as follows: RECITALS The above recitals are true and correct and are incorporated herein by reference. II. PREMISES TO BE JOINTLY USED Effective with the Commencement Date of this Agreement (as defined in Article III below), the Parties agree to jointly use the School basketball courts, as more particularly described in Exhibit"A" attached hereto and made a part hereof(the "DEMISED AREA"). III. TERM This Agreement shall be effective upon the date on which the last of the Parties initials or executes this Agreement (the "Effective Date"). Effective with the Effective Date, the CITY shall have access to the DEMISED AREA, with full right of ingress thereto and egress therefrom, for the specific and limited purpose of installing the Work (as hereinafter defined), as described in Article VI of this Agreement. The initial term of this Agreement shall be for a period of five (5) years, commencing upon the latter date of issuance of a Certificate of Occupancy. Certificate of Completion, or equivalent ("CO") by the BOARD'S Building department for the Work, which document shall be attached hereto and made a part hereof as Exhibit "B" (hereinafter referred to as the "Commencement Date"). Notwithstanding the foregoing, the CITY acknowledges and agrees that subsequent to completion of the Work (as hereinafter defined), but prior to the start of the CITY's use of the DEMISED AREA, the CITY shall provide the BOARD with a tour of the CITY's security cameras monitoring facility or with another mutually agreed upon meeting between the Miami Beach Police Department, the Miami-Dade Schools Police Department. the Miami-Dade Facilities Operations Maintenance Department and Miami-Dade Schools Operations to establish the protocol for use of the security cameras. The CITY shall not commence its use of the DEMISED AREA until the BOARD has verified in writing that the security cameras installed by the CITY adequately capture the DEMISED AREA, to the BOARD's satisfaction. Page 2 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21 20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 IV. CONSIDERATION The CITY shall pay to the BOARD as consideration for use and occupancy of the DEMISED AREA throughout the term of this Agreement, and any renewal thereof, the sum of one dollar ($1.00) per year in advance, beginning on the Commencement Date, and on the anniversary date of the Commencement Date each year thereafter. V. USE OF DEMISED AREA The DEMISED AREA as identified in Exhibit "A" shall be used by the CITY only for the operation of recreational programs sponsored, organized and supervised by the CITY and by the BOARD for the School's recreational and educational programs, and for no other purposes. The CITY covenants and agrees to accept the DEMISED AREA in its "as-is", "where-is" condition and basis with all faults as of the Effective Date of this Agreement, subject to all easements, covenants or other encumbrances of record. The BOARD makes no representations or warranties of any type or nature whatsoever, either expressed or implied, as to the usefulness, physical condition or appropriateness of the DEMISED AREA for the CITY'S operations or any specific use. The CITY, by executing this Agreement, agrees and acknowledges that the BOARD has made no representations whatsoever regarding the DEMISED AREA, including with respect to its environmental condition. The CITY represents that it is relying and will continue to rely solely on its own investigations of the DEMISED AREA in its decision to occupy or use it, and the CITY further acknowledges and agrees that the BOARD shall not indemnify the CITY in any way with respect to the condition of the DEMISED AREA. The provisions of this paragraph shall survive the expiration or the early termination or cancellation of this Agreement. Effective with the Commencement Date, the BOARD shall have full control, custody, right and use of the DEMISED AREA during regular school hours on regular school days, summer school, and during after school hours as required for, but not limited to, after-care and enrichment programs (the "BOARD'S Period of Use"). Notwithstanding this provision, the CITY acknowledges and agrees that the BOARD'S Period of Use may be modified annually as established through the BOARD'S approved Elementary and Secondary School Calendar ("School Calendar"), or as otherwise established by the School Administrator. Subject to the above, effective with the Commencement Date, the CITY shall have full control, custody, right and Page 3 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-4287-B48D-87A2C584D6B3 use of the DEMISED AREA from 8:00 a.m. to sundown on Saturdays and Sundays, subject to annual scheduling by the Parties, as outlined below (the "CITY'S Period of Use"). Notwithstanding the foregoing, the CITY acknowledges and agrees that as outlined in Article II of this Agreement, the CITY shall not have use of the DEMISED AREA until such time as the Work (as hereinafter defined) is completed by the CITY and the BOARD has provided written notification to the CITY that the DEMISED AREA is now available for use by the CITY. Written notification to the CITY by the BOARD of availability for use of the DEMISED AREA shall not exceed more than 45 days from completion of the Work. The School Administrator and the CITY's designated representative shall meet prior to the Commencement Date of this Agreement and annually thereafter prior to the start of each regular school year, as established through the BOARD'S approved School Calendar, or as soon thereafter as possible, to establish the schedule for the CITY'S Period of Use of the DEMISED AREA on Saturdays and Sundays for the upcoming school year (`Annual Scheduling Meeting"). At least thirty (30) calendar days prior to the Annual Scheduling Meeting, the CITY shall provide the School Administrator with a proposed schedule listing the weekends the CITY wishes to utilize the DEMISED AREA during the upcoming school year, for the School Administrator's approval. The approved schedule, as established during each Annual Scheduling Meeting (the "Approved City Schedule of Use") may be modified from time to time throughout the school year by mutual agreement of the Parties, or their designees, in writing, provided the CITY requests such additional weekend usage, not previously included in the Approved City Schedule of Use, no later than the preceding Wednesday. The CITY shall request approval of such additional weekend use in writing through the School Administrator, which approval shall not be unreasonably withheld, provided such use does not conflict with the BOARD'S operations or previous obligations. The Parties understand and agree that the Approved City Schedule of Use shall be for the particular calendar year only, and shall be reaffirmed or modified annually, as provided hereinabove. In addition to the above, should either Party require use of the DEMISED AREA for a special event or function or any other reason during the other Party's Period of Use, such Party shall request said use in writing through the other Party's designated representative, with a minimum of ninety-six (96) hours advance notice. Approval of said requests shall not be unreasonably withheld, provided such use does not conflict with the other Party's operations or previous obligations. Page 4 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21 20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 The use of the DEMISED AREA by the CITY for carnivals, fairs, exhibits, mechanical rides, midways, or the same or similar kinds of activities is expressly prohibited, and the sale or consumption of alcoholic beverages is expressly prohibited. Neither Party shall commit nor permit any violations of applicable laws, rules and regulations of the BOARD, including BOARD Policies, the CITY, State, or Federal government upon the DEMISED AREA. The CITY agrees that the DEMISED AREA shall not be used for storage of construction or maintenance materials, and it shall secure and lock all perimeter gates at the completion of the CITY'S daily Approved City Schedule of Use. In addition, the CITY shall comply with all School safety and security criteria, as established by the School Administrator, and provide proper security and supervision of the DEMISED AREA at all times during the Approved City Schedule of Use. To that end, the CITY shall, at the CITY's sole cost and expense, install security cameras within the DEMISED AREA, as a pre-condition to the CITY's use of the DEMISED AREA. The CITY acknowledges and agrees that such security cameras shall be monitored by the City of Miami Beach Police Department, in accordance with all applicable Federal, State and local laws and School Board Policies at all times during the Approved City Schedule of Use and any other times that the CITY has use of the DEMISED AREA. Such security cameras shall not be in use by the City nor monitored by the City of Miami Beach Police Department or its designees during BOARD's use of the DEMISED AREA. This representation shall be deemed a material representation, the violation of which may result in the immediate cancellation of this Agreement notwithstanding provision set forth under Article XVI hereof. Functionality and operation of cameras shall be subject to review by the School Board or its designee as condition precedent to execution of this Agreement, and periodically thereafter at the request of the BOARD or its designee. In addition, a CITY park staff shall be responsible for securing and locking all gates and doors within the DEMISED AREA, at the completion of the CITY's daily use of the DEMISED AREA. The CITY further acknowledges and agrees that the School Administrator shall have overall responsibility for any operational issues impacting the DEMISED AREA and/or School site, including without limitation, building security (including cameras), safety. etc., and the CITY shall comply with all such requirements established by the School Administrator with respect thereto and coordinate with the School Administrator on an ongoing basis to assure the safety of students, staff, visitors, invitees and the public at all times. The CITY shall promptly notify the BOARD or its designee of any and all notices or communications received by the CITY from any jurisdictional entity, as well as provide notice to the Page 5 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 BOARD of any incidents that occurred, in relation to any safety issues or law enforcement incidents on the DEMISED AREA or elsewhere on the School site. Thereafter, the CITY shall provide the BOARD with all information reasonably requested by the BOARD. and shall cooperate with the BOARD in implementing any policies or procedures by the CITY required to mitigate any further incidents in this regard. This representation by the CITY shall constitute a material inducement for the BOARD to enter into this Agreement. The Parties agree that the DEMISED AREA shall be closed from time to time to complete maintenance activities, with the method, scope and scheduling of any such closure to be determined by the BOARD or designee. In addition, the Parties acknowledge and agree that the DEMISED AREA may be closed or its use modified as required to effectively respond to Federal, State, School Board or local criteria or Emergency Orders, as such Emergency Orders may currently exist or be subsequently modified or amended, dealing with pandemics, including without limitation, any social distancing requirements. site supervision to assure compliance, requirements for Personal Protective Equipment, closure of facilities or restrictions on maximum capacity ("Emergency Orders"). Enforcement of these Emergency Orders by the CITY is a condition precedent to its occupancy and use of the DEMISED AREA during the CITY'S Period of Use. VI. CONSTRUCTION ACCESS AND IMPROVEMENTS TO THE DEMISED AREA Effective with the Effective Date of this Agreement, the BOARD does hereby grant to the CITY, the right and privilege to access the DEMISED AREA, with full right of ingress thereto and egress therefrom, for the specific and limited purpose of installing security cameras and new chain link fencing, a minimum of 6 feet in height within the DEMISED AREA, all at the CITY'S sole cost and expense, which work is a condition precedent to the CITY'S occupancy and use of the DEMISED AREA. All such work shall be as substantially depicted in Exhibit "C" attached hereto and made a part hereof (all such improvements, along with any future recreational improvements to be constructed by the CITY on the DEMISED AREA are collectively referred to herein as the "Work"). The CITY acknowledges and agrees, as a precondition to commencing any of the Work, to prepay to the BOARD all fees and costs to be borne by the BOARD for jurisdictional plan review, permits and inspections related to the Work. Page 6 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 All Work shall be completed by the CITY, at the CITY'S sole cost and expense. Any substantive change to the Work shall be approved by the BOARD, in its sole discretion and prior to implementation. The CITY acknowledges and agrees that the CITY'S occupancy and use of the DEMISED AREA shall not commence until: (1) the CO is issued, as applicable, for the Work, (2) the BOARD has verified in writing that the security cameras installed by the CITY adequately capture the DEMISED AREA, to the BOARD's satisfaction, and (3) the CITY has provided to the BOARD sufficient documentation acceptable to the BOARD certifying compliance with any requirements set forth in this Agreement with respect to Emergency Orders and any policies or requirements which may be established by the BOARD relating thereto. The CITY agrees that prior to the commencement of construction of any Work by the CITY or its contractors at the DEMISED AREA, the CITY shall submit plans and specifications, as required by the BOARD, for review and approval in writing by the BOARD. or its designee, which the BOARD may approve or disapprove at its sole authority and discretion. All Plans must be signed and sealed by a duly licensed design professional and be of sufficient detail to secure any and all permits necessary to commence the Work. Any and all warranties between the CITY and its architect/engineer of record shall flow to the BOARD in the event of errors and omissions. The plans shall be prepared in accordance with all applicable laws, rules. regulations, statutes and codes, including without limitation, the District design criteria,. specifications and safety codes, the State Requirements for Educational Facilities and the Florida Building Code, in effect at the time the plans are submitted to the BOARD. All Work shall be performed in a good and workmanlike manner by contractors who are licensed, insured and fully bonded, and the CITY shall provide evidence of same to the BOARD prior to commencement of the Work. If required by the BOARD, at the BOARD'S sole determination, the CITY'S contractors must be pre-qualified by the BOARD, in accordance with District and BOARD Policies before commencing the Work or any construction activities on the DEMISED AREA or any other portion of the School. All Work shall be at the sole cost and expense of the CITY and in compliance with all applicable laws, rules, and regulations, including, without limitation, the Florida Building Code. the Americans with Disabilities Act, the Jessica Lunsford Act, the State Requirements for Educational Facilities, and District design criteria and standards, as the same may be amended from time to time. The BOARD'S Building department shall be the entity responsible for reviewing and Page 7 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-4287-B48D-87A2C584D6B3 approving all construction documents, issuing permits for construction and providing final acceptance of the Work. The Work shall commence only after issuance of proper permits, in conformance with the requirements of the BOARD'S Building department or other appropriate jurisdictional governmental entity, and shall at all times be in compliance with all applicable laws, rules and regulations, including, without limitation, the Florida Building Code, the Americans with Disabilities Act, the Jessica Lunsford Act, the State Requirements for Educational Facilities, and the District criteria and standards, as the same may be amended from time to time. All permits shall be properly closed by the CITY upon completion of the Work, and evidence of same, satisfactory to the BOARD, shall be provided without demand. All Work shall be limited to those areas designated in the plans, and the CITY shall have no authority to access any other portions of the School not part of the DEMISED AREA, except as otherwise provided for in this Agreement or as authorized in writing by the BOARD, or its designee, in its sole discretion and on an as-needed basis. The Work shall conform at all times to the safety criteria established with and approved by the BOARD, or its designee, and shall neither unreasonably disrupt or interfere with the BOARD'S operations at the School. The CITY and its contractors shall take all necessary safety precautions during the Work, secure all construction areas by appropriate construction fencing or barricades, and coordinate on an ongoing basis with the School Administrator and assigned District Project Manager to assure the safety of the BOARD'S students, staff, visitors. invitees and the public at all times. In addition, the CITY and its contractors shall work closely with the School Administrator and assigned District Project Manager to assure the Work does not interfere with or disrupt School or District operations. The CITY shall make every reasonable effort to ensure that construction-related activities to be performed within the DEMISED AREA are conducted during other than School hours, and the CITY'S activities shall neither unreasonably disrupt nor interfere with the School's daily operations. Subject to compliance with the provisions of the Jessica Lunsford Act, in the event that such activities must be conducted during School hours, or in the event the CITY requires access to the DEMISED AREA for any other reason, the CITY shall first secure the approval of the School Administrator. Prior to the commencement of the Work, the CITY shall provide the BOARD, or its designee, with a schedule for the commencement and completion of the Work. If the BOARD, or its designee, requests that the CITY cease any work within the DEMISED AREA due to unreasonable interference or violation of any applicable rules and regulations or the BOARD'S criteria. then Page 8 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21 20 DocuSign Envelope ID:3458153F-150A-4267-B48D-87A2C584D6B3 the CITY shall immediately discontinue its activities at the DEMISED AREA, and shall proceed only after the BOARD, or its designee, has reviewed the scheduling, safety and/or manner of work in question and has authorized the CITY to continue. The CITY shall cause each and every of its contractors and subcontractors performing any work within the DEMISED AREA to indemnify, defend and hold harmless the BOARD, its employees and representatives from any and all liability, damages and claims. In addition, as a pre-condition to commencing the Work, the CITY shall require the CITY'S contractor(s) to provide the BOARD with insurance certificates evidencing insurance coverage and limits meeting, at a minimum, the following requirements: (1) Commercial General Liability Insurance in an amount not less than $1 Million combined single limit per occurrence for bodily injury and property damage, (2) Automobile Liability Insurance covering all owned, non-owned and hired vehicles used in connection with the operations of the CITY'S contractors and subcontractors, in an amount not less than $1 million combined single limit per occurrence for bodily injury and property damage, (3) Workers' Compensation Insurance for all employees of the CITY'S contractors and subcontractors, as required by Florida Statutes, and (4) Property Insurance. "The School Board of Miami-Dade County, Florida and its members, officers and employees" shall be an additional insured on all liability coverages except Workers' Compensation Insurance. The CITY'S contractors and subcontractors shall maintain such insurance at all times while conducting construction related activities throughout the term of this Agreement. The CITY covenants and agrees that it shall indemnify, hold harmless and defend the BOARD from and against any and all claims, liens, suits, actions or causes of action arising out of or in connection with any construction costs and expenses for improvements made by the CITY within the DEMISED AREA or elsewhere on the School campus. In addition, the CITY shall cause each and every of its contractors and subcontractors performing work at the DEMISED AREA (hereinafter collectively referred to as "CITY'S Contractors", and individually as the "CITY'S Contractor") to further covenant and agree, at the CITY'S Contractors' own expense, and upon written request by the BOARD, to defend any suit, action or demand brought against the BOARD on any claim or demand arising out of, resulting from, or incidental to the CITY'S Contractors performance under any contract by and between the CITY and/or its assigns and any and all contractors and subcontractors. This provision shall survive the expiration, cancellation or early termination of this Agreement. Furthermore, the CITY and/or its assigns shall cause the indemnification provision and the duty to defend provision in its Contract with CITY'S Contractors to Page 9 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 survive the cancellation, early termination or expiration of any and all contracts by and between the CITY and/or its assigns and any CITY'S Contractors. If, as a result of the CITY'S actions in the performance of the Work, or failure to act, portions of the DEMISED AREA or School are damaged, in the sole opinion of the BOARD, then the CITY shall repair and/or restore the damaged area, at its sole cost and expense, to the same or better condition as existed prior to such action. The CITY shall complete the necessary repairs within thirty (30) days of receipt of written notice from the BOARD. In the event that the CITY is unable to complete the repair work within said thirty (30) day period, the CITY shall provide the BOARD with written notification stating the reasons, together with a mutually agreed to schedule for the completion of the repairs. If the CITY fails to complete the repair work within the prescribed time frame, then the BOARD, at its sole option, shall have the right, but not the obligation, to make the necessary repairs, at the CITY'S sole cost and expense. The CITY covenants and agrees that it shall reimburse the BOARD for this work within thirty (30) days of receipt from the BOARD of an invoice for same, accompanied by such documentation as may be reasonably required by the CITY to substantiate the nature and completeness of the work. In the alternative. the BOARD may instead place the CITY in default under this Agreement. Notwithstanding the foregoing, in the event of damage to the DEMISED AREA or School site caused by the CITY or its agents, contractors or invitees, resulting in a significant impact to operations or the safety and well-being of the BOARD'S students, staff and visitors. and requiring immediate repair, as determined by the BOARD at the BOARD'S sole discretion, the BOARD may, at the BOARD'S sole discretion, complete the necessary repairs, at the CITY'S sole cost and expense. If required by the BOARD, at the BOARD'S sole determination, prior to the start of any construction activities at the School, and irrespective of the CITY'S estimate of the cost of construction of the Work, the CITY shall provide to the BOARD a payment and performance bond ("Bond") with a surety insurer authorized to do business in the State of Florida as surety, based on the cost of the Work as determined solely by the BOARD. The Bond may be in the form described in Florida Statutes §255.05 or otherwise, so long as all protections and relevant provisions set forth in §255.05 are provided to all persons defined in Florida Statutes §713.01 who furnish labor, services, or materials for the prosecution of the Work provided for in the Agreement. The CITY shall not permit any liens to be filed or attached to the DEMISED AREA or Page 10 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21 20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 School for any reason whatsoever, including, but not limited to, as a result of the Work performed by the CITY pursuant to this Agreement. In the event that any such lien is recorded in the official records of Miami-Dade County, Florida, the CITY shall, within twenty (20) calendar days of the date of such filing, cause such lien to be removed of record or properly transferred to a bond under Chapter 713, Florida Statutes. In the event a notice of violation is issued by any jurisdictional agency relating to the Work, said notice of violation shall be the sole responsibility of the CITY, and the CITY shall cure said violation(s)within thirty(30) days of receipt thereof, at the CITY'S sole cost and expense. Should the CITY fail to comply with this requirement, then the BOARD may, by its own effort, cause such lien or other violations to be removed of record and cured. The CITY shall be liable to the BOARD for all costs of such removal including, without limitation. any and all reasonable attorneys' fees. court costs and any other cost or expense incurred or expended by the BOARD. It is expressly understood by the Parties that the CITY shall not commence any of the Work or construction activities within the DEMISED AREA or at or about the School site until the BOARD, or its designee, has received all items stipulated in this Agreement and has notified the CITY, in writing, as to the approved date for the start of the Work. At the completion of the work. the CITY shall secure an inspection of the Work from the BOARD'S designee, verifying that the Work on the DEMISED AREA has been satisfactorily and properly completed, and shall not release its contractor from its contractual obligations or make final payment to the contractor until the BOARD'S designee attests to the satisfactory completion of the Work. In addition, the CITY agrees that the CITY or the CITY'S Contractors shall restore the DEMISED AREA to a condition that is safe and usable, including without limitation, the removal and/or disposal of equipment, materials, personal property, debris and/or trash, all at the sole cost and expense of the CITY. The CITY shall provide to the BOARD all as-built drawings, Warranties, test data, and any other documents related to the Work, and will provide proof of closure of any and all permits related to the Work, without demand and at no cost to the BOARD. Failure of the CITY to complete the Work within ninety (90) days of the Effective Date, or some other period of time as mutually agreed to by the Parties, shall constitute a breach under this Agreement, and may result in the automatic termination of this Agreement for cause, irrespective of Article XVI of this Agreement. In such event, the CITY covenants and agrees to restore the DEMISED AREA. at the CITY'S sole cost and expense, to the same or better condition existing prior to the Commencement Date of this Agreement. Page 11 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 In addition to the Work to be constructed by the CITY as described in Exhibit "C", in the event the CITY wishes to make any other improvements within the DEMISED AREA or elsewhere on the School site during the term of this Agreement ("Additional Improvements"). the CITY shall provide the BOARD with a written request, in accordance with Article XXVII hereof, detailing the proposed improvements to be made, which the BOARD or its designee may approve or disapprove at its sole authority. Any such Additional Improvements shall be at the sole cost and expense of the CITY, and all terms of this Agreement, as it may be amended, relating to the construction and operation of the Work, shall govern the construction and operation of said Additional Improvements. Notwithstanding the foregoing, the CITY acknowledges and agrees that any Additional Improvements to any other portions of the DEMISED AREA may not take place without an amendment to this Agreement in full compliance with Section 1013.15(1), F.S., specifically modifying the description and use of the DEMISED AREA. In the alternative, the CITY may provide written notice to the BOARD in accordance with Article XXVII requesting that the BOARD make certain Additional Improvements, alterations or repairs within the DEMISED AREA, at the CITY'S sole cost and expense. The CITY'S Notice shall set forth the requested improvements, which the BOARD or its designee, in its sole authority, may or may not choose to pursue. Prior to the commencement of any Additional Improvements, the BOARD shall provide the CITY with a written cost estimate for the requested improvements, and a proposed schedule for completion of the work. Subsequent to receipt by the BOARD of a written notice from the CITY of its election to proceed, the Parties shall execute an amendment to this Agreement setting forth the terms and conditions of the project. The CITY acknowledges and agrees that prior to the BOARD entering into any design or construction contracts, or commencing any design or construction activities, the CITY shall provide the BOARD with the full amount of the funds necessary to cover all project costs (i.e. "soft costs" including, but not limited to architectural and engineering services, geotechnical and environmental testing, surveys, etc., and "hard costs" including. but not limited to construction services,test and balance reports, etc.). VII. MAINTENANCE Given that the CITY's use of the DEMISED AREA is limited to weekends as outlined in Article V of this Agreement, the BOARD shall be responsible for providing all maintenance, repair and upkeep of the DEMISED AREA, except for the maintenance of the security cameras which shall remain the sole obligation of the CITY. All such maintenance services will be Page 12 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 provided in compliance with the BOARD'S standards, operating procedures and frequency of service. Notwithstanding the above, the CITY shall be responsible for pick-up and removal of trash and litter within the DEMISED AREA generated during the Approved City Schedule of Use. The CITY shall also be responsible for making any required repairs to the DEMISED AREA, at the CITY'S sole cost, where the BOARD can substantiate that such improvements were damaged as a result of the actions or negligence of the CITY. Furthermore, the CITY shall be solely responsible for compliance with all maintenance requirements and mitigating measures, under any Emergency Order or Board Policy relating thereto, during the CITY's Period of Use. Notwithstanding the foregoing, the BOARD shall be responsible for pick-up and removal of trash and litter within the DEMISED AREA generated during the BOARD'S Period of Use. VIII. INSURANCE The CITY shall, on or before the Commencement Date of this Agreement, and all times during the term of this Agreement. provide the BOARD with confirmation of the CITY'S self- insurance program in a form and substance acceptable to the BOARD or its designee, or, in the alternative, proof of insurance evidencing insurance coverage and limits meeting, at a minimum, the following requirements: (1) Commercial General Liability Insurance in an amount not less than $1 Million combined single limit per occurrence for bodily injury and property damage. (2) Automobile Liability Insurance covering all owned, non-owned and hired vehicles used in connection with the operations of the CITY, in an amount not less than $1 million combined single limit per occurrence for bodily injury and property damage, and (3) Workers' Compensation Insurance for all employees of the CITY as required by Florida Statutes. "The School Board of Miami-Dade County, Florida and its members, officers and employees" shall be named as an additional insured on all liability coverages except Workers' Compensation Insurance. Proof of coverage shall be provided to the BOARD on an original certificate of insurance endorsed to reflect a minimum thirty (30) day advanced notice of cancellation. The certificate of insurance shall be delivered to the BOARD on or before the Effective Date of this Agreement, and shall remain in full force and effect during the term of this Agreement, and the CITY shall furnish the BOARD evidence of renewals of such insurance policy no less than thirty (30) days prior to the expiration of the then current policy. Page 13 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 IX. UTILITIES AND OTHER SERVICES In the event the CITY utilizes or constructs any improvements requiring utility service, as determined by the BOARD, the CITY shall install separate utility services and/or meters in its name and shall pay for all such utility services, including without limitation, water, sewer, electricity, gas, and trash collection, at the CITY'S sole cost and expense. X. INDEMNIFICATION AND HOLD HARMLESS The CITY does hereby agree to indemnify and hold harmless the BOARD, to the extent of the limitations within Florida Statutes, Section 768.28, subject to the provisions in the 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. The BOARD does hereby agree to indemnify and hold harmless the CITY, to the extent of the limitations within Florida Statutes. Section 768.28, subject to the provisions in the 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 provisions of this Article shall survive the expiration or early termination or cancellation of this Agreement. Page 14 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21 20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 XI. NO LIABILITY FOR PERSONAL PROPERTY The Parties agree to insure or self-insure their interests in personal property to the extent each Party deems necessary or appropriate and hereby waive all rights to recovery for loss or damage of such property by any cause whatsoever. The Parties hereby waive all rights of subrogation under any policy or policies they may carry on property placed or moved on the DEMISED AREA. XII. LIABILITY FOR DAMAGE OR INJURY 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 DEMISED AREA, 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, and in such event the BOARD'S liability shall be subject to the limitations of Section 768.28, Florida Statutes. The BOARD shall not be responsible or liable for any loss of business, consequential damages or any other damages arising from acts of God. 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 DEMISED AREA, 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, and in such event the CITY'S liability shall be subject to the limitations of Section 768.28, Florida Statutes. The CITY shall not be responsible or liable for any loss of business, consequential damages or any other damages arising from acts of God. The provisions of this Article shall survive the expiration, or early termination or cancellation of this Agreement. XIII. ASSIGNMENT AND SUBLETTING The CITY shall not, at any time during the term of this Agreement, sublet in part or whole the DEMISED AREA, or assign, transfer, mortgage, pledge, hypothecate or otherwise dispose of its interest in this Agreement or any portion or part thereof, or allow any other individual or entity to operate or manage the DEMISED AREA, or permit the DEMISED AREA to be occupied by other persons, firms, corporations, or governmental units, without the BOARD'S prior written consent, which may be withheld at the BOARD'S sole discretion. Any unauthorized assignment, sublet or otherwise, shall constitute a material breach under this Agreement, and may result in Page 15 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 the automatic termination of this Agreement for cause. irrespective of Article XVI of this Agreement. XIV. EXTENSION OF AGREEMENT If not in default in performance of the obligations set forth in this Agreement, the CITY shall have the right to extend this Agreement, under the same terms and conditions set forth herein, for two (2) additional terms of five (5) years each from the expiration of the original term or any renewal thereof, at the sole option of the BOARD, provided the CITY gives written notice to the BOARD, as set forth in Article XXVII, at least ninety (90) days prior to the expiration of the then current term. The BOARD'S approval shall not be unreasonably withheld. The Parties acknowledge and agree that any extension of the term shall be accomplished through the execution by the Parties of an amendment to this Agreement. XV. CANCELLATION In addition to the provisions of Articles XVI and XXVIII, the BOARD and CITY shall each have the right to cancel this Agreement without cause or penalty, by giving the other Party written notice at least ninety (90) days prior to the effective date of said cancellation. In the event of cancellation by either Party, the CITY shall surrender and vacate the DEMISED AREA in compliance with Article XX of this Agreement. XVI. DEFAULT 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 or does not provide the BOARD with a written response indicating the status of the CITY'S curing of the default and providing a mutually agreeable schedule to cure all defaults, said approval not to be unreasonably withheld, within thirty (30) days after receiving written notice, the BOARD shall have the right to immediately terminate this Agreement, without penalty, upon ten (10)days additional written notice to the CITY. The CITY 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 or does not provide the CITY with a written response indicating the status of the BOARD'S curing of the default and providing a mutually Page 16 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 agreeable schedule to cure all defaults, said approval not to be unreasonably withheld, within thirty (30) days after receiving written notice, the CITY shall have the right to immediately terminate this Agreement, without penalty, upon ten (10)days additional written notice to the BOARD. In the event of termination due to default by either Party, which default is not cured, the CITY shall surrender and vacate the DEMISED AREA in compliance with Article XX of this Agreement. XVII. PEACEFUL POSSESSION Subject to the terms, conditions and covenants of this Agreement, the Parties agree that each Party shall and may peaceably have, hold and enjoy the DEMISED AREA, without hindrance or interference by the other Party. XVIII. RIGHT OF ENTRY Other than in the event of an emergency and subject to the provisions of Article XXXI, after first providing reasonable notice to the CITY, the BOARD, or any of its agents, representatives or employees, shall have the right to enter the DEMISED AREA during the Approved City Schedule of Use to examine same or to make such repairs, additions or alterations as may be deemed necessary for the safety, comfort or preservation of the DEMISED AREA. provided such activities do not unreasonably interfere with the CITY'S use of the DEMISED AREA. XIX. TAXES AND REGULATORY COMPLIANCE The CITY shall be responsible for the collection and payment of any taxes, fees, operating permits, licenses, or other assessments, if any, including but not limited to sales tax and ad valorem tax, all licenses. permits or other taxes, which may be imposed on the DEMISED AREA or the School, as a result of the leasing, use, and occupancy of the DEMISED AREA by the CITY. If at any time during the term of this Agreement, there is a requirement by any jurisdictional entity for infrastructure improvements or other regulatory compliance due to the CITY'S lease, use or occupancy of the DEMISED AREA, the CITY acknowledges and agrees that it shall be responsible for compliance with all applicable requirements, including any upgrades, modifications or changes, at the CITY'S sole cost and expense. Non-compliance with the provisions of this Article XIX shall be deemed a material breach Page 17 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 of this Agreement. XX. SURRENDER OF PREMISES Except as otherwise provided in this Agreement, the CITY agrees, at the expiration, termination or cancellation of this Agreement or any extension thereof, to promptly and peacefully surrender and deliver possession of the DEMISED AREA to the BOARD in good order and repair and in as good or better condition as existed on the Commencement Date of this Agreement, ordinary wear and tear, or damage by fire, windstorm or other Acts of God, excepted. The CITY shall promptly remove all of the CITY'S personal property and other items belonging to the CITY from the DEMISED AREA, including any signage installed by the CITY. In addition, upon the expiration, cancellation or termination of this Agreement, the CITY agrees, at the BOARD'S sole option, to remove any improvements or other facilities constructed by the CITY on the DEMISED AREA, and to restore such area to the same or better condition as existed before the Commencement Date of this Agreement. In the event the BOARD elects to retain said improvements constructed by the CITY, the CITY agrees to convey title to the improvements to the BOARD, without compensation due to the CITY. The CITY shall promptly return all keys and other items belonging to the BOARD and shall coordinate with the BOARD to ensure a proper and timely surrender of the DEMISED AREA. Any of the CITY'S personal property not removed within ten (10) days after expiration, termination or cancellation of this Agreement shall be considered abandoned. XXI. AMENDMENTS In addition to the requirements set forth elsewhere in this Agreement, the BOARD and CITY, by mutual agreement, shall have the right, but not the obligation, to amend this Agreement, which shall be accomplished through the execution by the Parties of an amendment to this Agreement duly approved by the School Board in compliance with all applicable laws, including. without limitation, Section 1013.15(1), F.S. Such amendments shall be effective only when signed by the BOARD and CITY and shall be incorporated as part of this Agreement. XXII. NON-DISCRIMINATION The Parties agree that there will be no discrimination against any person based upon race, color, sex, religious creed, ancestry, national origin, mental or physical handicap, sexual orientation, or as otherwise provided by law, in the use of the DEMISED AREA. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination in Page 18 of 33 Joint Use AgreementlCity of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 the use of the DEMISED AREA by a Party hereto has occurred, such event shall be treated as a Default hereunder. XXIII. 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. XXIV. 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 Miami-Dade County, Florida. XXV. SEVERABILITY In the event any paragraph, clause or sentence of this Agreement or any future amendment thereto 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 any deletion, provided to do so would not render interpretation of the Agreement provisions ambiguous or a nullity. )(XVI. WAIVER No waiver of any provision shall be deemed to have been made unless such waiver is in writing and signed by the BOARD or the CITY. The failure of any Party to insist upon strict performance of any of the covenants, provisions or conditions of this Agreement shall not be construed as waiving or relinquishing any such covenants, provisions or conditions, but the same shall continue and remain in full force and effect. XXVII. NOTICE AND GENERAL CONDITIONS A. All notices or communications under this Agreement by either Party to the other ("Notice"), shall be sufficiently given or delivered if dispatched by(1) certified U.S. mail, postage pre-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) Page 19 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21 20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 electronic mail to the following addresses, or as the same may be changed in writing from time to time: In the case of notice or communication to BOARD: The School Board of Miami-Dade County, Florida c/o Superintendent of Schools School Board Administration Building 1450 N.E. Second Avenue, Room 912 Miami, Florida 33132 Fax: 305-995-1488 With a copy to: Miami-Dade County Public Schools Office of School Facilities Attention: Chief Facilities Design and Construction Officer 1450 N.E. Second Avenue, Room 923 Miami, Florida 33132 Fax: 305-995-1607 E-mail: RPerez6@dadeschools.net With a copy to: 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(a�dadeschools.net and ACraft[a dadeschools.net In the case of notice or communication to the CITY: City of Miami Beach Office of the City Manager 1700 Convention Center Drive Miami Beach, FL 33139 Attn: City Manager Fax: 305-673-7782 E-mail: JimmvMorales[c�miamibeachfl.00v With a copies to: City of Miami Beach Parks and Recreation Department 1701 Meridian Avenue, Suite 401 Miami Beach, FL 33139 Attn: Parks and Recreation Director Fax: 305-673-7730 Page 20 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 E-mail: JohnRebarmiamibeachfl.qov City of Miami Beach Office of the City Attorney 1700 Convention Center Drive Miami Beach, FL 33139 Attn: City Attorney Fax: 305-670-7002 E-mail: RaulAquila(c miamibeachfl.gov 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 the Agreement, the Superintendent of Schools or his/her designee shall be the party designated by the Board to grant or deny all approvals or waivers required by the Agreement dealing with construction of improvements, changing periods or schedules of use, or any other routine operational issues. D. In addition to the above, for purposes of the Agreement, the Superintendent of Schools shall be the party designated by the Board to execute amendments to this Agreement within the authority granted to the Superintendent by the BOARD in this Agreement, and to grant or deny any approvals required by the Agreement, including placing the CITY in default, or renewing, extending, canceling or terminating the Agreement. E. 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. 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. XXVIII. DAMAGE AND DESTRUCTION Other than damage or destruction caused by the BOARD, as enumerated below, in the event the DEMISED AREA, in whole or in part, should be destroyed or so damaged by fire, Page 21 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 windstorm or other casualty to the extent the facilities are rendered untenantable or unfit for the purposes intended, the CITY may cancel this Agreement with thirty (30) days advance written notice to the BOARD. If the CITY fails to cancel this Agreement, the BOARD may, at its sole option, either cancel this Agreement by giving written notice to the CITY, or repair or replace the damaged/destroyed facilities, other than the cameras which shall remain the CITY's sole responsibility. In the alternative, in the event neither Party cancels the Agreement and the BOARD does not elect to repair the damaged/destroyed facilities as provided above, the CITY, at its sole option, may repair/replace the damaged/destroyed facilities, at the CITY'S expense. In the event the CITY elects to repair or replace the damaged/destroyed facilities, the CITY shall repair or replace same, and place in a safe. secure and useable condition within one hundred eighty (180) days from the date of said damage or destruction, or other reasonable period of time as mutually agreed to by the Parties, which shall be determined based upon the scope and nature of the damages, costs of the necessary repairs and available funding for such repairs. Should the damaged/destroyed facilities not be repaired and rendered tenantable within the aforementioned time period, then the BOARD may, at its sole option, cancel this Agreement with ten (10)days advance notice. The Parties agree that in the event of cancellation of the Agreement due to damage or destruction, the Parties shall surrender the DEMISED AREA in compliance with Article XX of this Agreement. Any damage or destruction sustained to the DEMISED AREA where the CITY can substantiate that the improvements were damaged or destroyed as a result of the actions of the BOARD, shall be repaired by the BOARD, at the BOARD'S sole cost and expense. XXIX. SIGNAGE The CITY may erect, at its sole cost and expense, identification signage within the DEMISED AREA, subject to the prior written approval of the BOARD, or its designee, and in conformance with all rules and regulations governing public schools. Upon the termination, expiration or cancellation of this Agreement, the CITY shall remove from the DEMISED AREA, at the CITY'S expense, any signage erected by the CITY, and restore the area to the same or better condition as existed prior to the CITY'S installation of the signage. Page 22 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 xX. HAZARDOUS MATERIALS For purposes of this Agreement, the term "Hazardous Substances" shall include, but not be limited to. flammable substances, explosives, radioactive materials, asbestos, polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, medical wastes, toxic substances or related materials, petroleum and petroleum products, and substances declared to be hazardous or toxic by Environmental Law. The term "Environmental Law" shall mean any law, ordinance, rule, order. decree, judgment, regulation and guideline (present and future), of any governmental, quasi- public authority and applicable board of insurance underwriters related to environmental conditions on, under, or about the School or DEMISED AREA, or arising from the CITY'S use or occupancy of the DEMISED AREA, including, but not limited to, soil, air and ground water conditions, or governing the use, generation, storage, transportation, or disposal of Hazardous Substances in, on, at, to or from the DEMISED AREA. The term ''Hazardous Substances Discharge" shall mean any deposit, spill, discharge, or other release of Hazardous Substance that occurs during the term, at or from the DEMISED AREA, or that arises at any time from use or occupancy of the DEMISED AREA. The CITY shall not cause or permit to occur: (a) any violation of any Environmental Law in the DEMISED AREA or School, or (b) the use, generation, release. manufacture, refining, production, processing, storage or disposal of any Hazardous Substances on, under, or about the DEMISED AREA. or the transportation to or from the DEMISED AREA of any Hazardous Substance. The CITY shall, at the CITY'S expense, comply with all applicable Environmental Laws with respect to the DEMISED AREA and School. The CITY shall, at the CITY'S own expense, make all submissions to, provide all information required by and otherwise fully comply with all requirements of any governmental authority arising under Environmental Laws with respect to the DEMISED AREA during the term of this Agreement. If any governmental authority requires any clean-up or clean-up measures because of any Hazardous Substances Discharge demonstrated to have been caused by the CITY with respect to the DEMISED AREA or School, then the CITY shall, at the CITY'S own expense, prepare and submit the required plans and all related bonds and other financial assurances and shall carry out all such clean-up plans. The CITY shall promptly notify the BOARD of any notices or communications received from any Page 23 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21 20 DocuSign Envelope ID:3458153F-150A-4267-B48D-87A2C584D6B3 jurisdictional entity in relation to any environmental issues on the DEMISED AREA or elsewhere on the School site, and shall promptly provide the BOARD with all information reasonably requested by the BOARD regarding the CITY'S use, generation, storage, transportation or disposal of Hazardous Substances in or at the DEMISED AREA. The obligations and liability of the Parties under this paragraph shall survive the expiration or termination of this Agreement. XXXI. 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. XXXII. SUBORDINATION Notwithstanding any other provisions of this Agreement, this Agreement is and shall be subject and subordinate to any conveyance and ground or underlying leases, and the rights of the School and the rights of the BOARD under those leases and to all financing that may now or hereafter affect the leases or the School, or any portions thereof, and to all renewals, modifications, consolidations, replacements and extensions thereof. This provision shall be self-operative and no further instrument of subordination shall be necessary. However, in confirmation of this subordination, the CITY shall execute, within forty-five (45)calendar days of request, any certificate that the BOARD may request. XXXII!. FLORIDA PUBLIC RECORDS LAW; AUDITS AND INSPECTIONS& ACCESS TO RECORDS This Agreement shall be subject to Florida's Public Records Laws, Chapter 119, Florida Statutes. The Parties understand the broad nature of these laws and agree to comply with Florida's Public Records Laws and laws relating to records retention. The CITY shall keep and maintain public records required by the BOARD to perform the service. The CITY shall keep records to show its compliance with this Agreement. The CITY'S contractors and subcontractors must make available, upon request of the BOARD, a Federal grantor agency, the Comptroller Page 24 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 General of the United States, or any of their duly authorized representatives, any books, documents, papers, and records of the CITY or its assigns, contractors or subcontractors which are directly pertinent to this specific Agreement for the purpose of making audit, examination, excerpts, and transcriptions. Upon request from the BOARD'S custodian of public records. the CITY shall provide the BOARD 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. The CITY 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 term of this Agreement and following the expiration or early termination or cancellation of this Agreement if the CITY does not transfer the records to the BOARD. The CITY, its assigns, contractors and sub-contractors shall retain all records for five (5) years after final payment is made or received and all pending matters are completed pursuant to Title 34, Sections 80.36(b)(1). The CITY, upon completion of the Agreement, shall transfer, at no cost to the BOARD, all public records in possession of the CITY or keep and maintain public records required by the BOARD to perform the service. If the CITY transfers all public records to the BOARD upon completion of the Agreement, the CITY shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CITY keeps and maintains public records upon completion of the Agreement, the CITY shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the BOARD, upon request from the BOARD'S custodian of public records, in a format that is compatible with the information technology systems of the BOARD. The CITY shall incorporate this provision into every contract that it enters into relating to the DEMISED AREA. IF THE CITY HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE PROVIDER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT 305-995-1128, prrna.dadeschools.net, and 1450 NE 2 Avenue, Miami, Florida 33132. XXXIV. USE OF FACILITY AS A REVENUE GENERATOR The BOARD shall at all times retain the exclusive right to be the sole authorizer and recipient of revenue generators, in compliance with BOARD Policies, relating to the DEMISED AREA, including, without limitation, third party advertising or installation of wireless Page 25 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 telecommunications facilities, provided such endeavors do not unreasonably interfere with the CITY'S rights to peaceful enjoyment of the DEMISED AREA. XXXV. REPRESENTATIONS The CITY has full power to execute, deliver, and perform its obligations under this Agreement. The execution and delivery of this Agreement, and the performance by the CITY of its obligations under this Agreement, have been duly authorized by all necessary action of the CITY, and do not contravene or conflict with any rules, regulations, policies or laws governing the CITY, or any other agreement binding on the CITY. The individual(s)executing this Agreement on behalf of the CITY has/have full authority to do so. The BOARD has full power to execute, deliver, and perform its obligations under this Agreement. The execution and delivery of this Agreement, and the performance by the BOARD of its obligations under this Agreement, have been duly authorized by all necessary action of the BOARD, and do not contravene or conflict with any rules, regulations, policies or laws governing the BOARD. or any other agreement binding on the BOARD. The individual(s) executing this Agreement on behalf of the BOARD has/have full authority to do so. XXXVI. MISCELLANEOUS PROVISIONS A. RECORDATION: This Agreement may not be recorded, in any form. by either Party. B. EMINENT DOMAIN: If all or portions of the DEMISED AREA are taken in the exercise of the power of eminent domain, this Agreement shall terminate on the date title vests in the taking authority. The CITY may pursue all available remedies for the taking but will have no interest in the award made to the BOARD. C. RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department. D. TIME IS OF THE ESSENCE: Time is of the essence in the performance of this Agreement. E. WAIVER OF TRIAL BY JURY: THE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY Page 26 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 AGAINST THE OTHER WITH RESPECT TO ANY MATTER ARISING UNDER THIS AGREEMENT OR THE CITY'S AND BOARD'S USE OR OCCUPATION OF THE DEMISED AREA. F. BROKERS: The CITY represents that there are no brokers, salesmen or finders involved in the transaction contemplated by this Agreement. If any other claim for a brokerage fee or commission in connection with this transaction is made by any broker, salesman or finder claiming to have dealt by, through or on behalf of the CITY ("Indemnitor"), and in consideration of the mutual promises contained in this Agreement, Indemnitor shall indemnify, defend and hold harmless the BOARD ("Indemnitee"), and Indemnitee's officers, directors, agents and representatives, from and against any and all liabilities, damages, claims, costs, fees and expenses whatsoever with respect to said claim for brokerage. The provisions of this Paragraph shall survive the expiration or earlier termination or cancellation of this Agreement. G. PROMOTION: Other than activities undertaken to promote the CITY'S program(s) within the DEMISED AREA, the CITY shall not be permitted to use the DEMISED AREA for promotion or advertising of any type or nature whatsoever. H. USE APPROVALS: The CITY shall be responsible for determining and securing, at its sole cost and expense, all federal, state, county, municipal and/or other permits, licenses, use approvals, occupational licenses, certificates or approvals needed, if any, for the CITY'S use and operations at the DEMISED AREA, prior to commencement of the Agreement. I. COUNTERPARTS: This Agreement 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 detached from the counterparts and attached to a single copy of this document to physically form one Agreement. J. TAX-EXEMPT STATUS: In addition to the provisions of Article XIX of this Agreement. the CITY acknowledges and agrees that in the event the tax-exempt status of the DEMISED AREA is rescinded or is at risk of being rescinded by Miami-Dade County or other appropriate jurisdictional governmental entity as a result of the use, occupancy or lease of same by the CITY, such rescission or potential rescission (as may be evidenced by a Notice of Proposed Property Taxes or any other official notice of any tax Page 27 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 imposed by County, State or any other jurisdictional entity) shall constitute a default under this Agreement, and may result, at the BOARD'S sole option, in the automatic termination of this Agreement for cause, irrespective of Article XVI of this Agreement. Payment of any taxes so imposed shall be remitted to the BOARD within ten (10) days of receipt of notice, without demand. K. INTELLECTUAL PROPERTY RIGHTS: The CITY shall indemnify and hold harmless the BOARD from and against all liability of any nature or kind, including damages, costs and expenses (including reasonable attorney's fees and costs at the trial level and through all appeals) for or on account of any copyrighted, service marked, trademarked, patented or unpatented invention, process, article or work manufactured or used in the performance of this Agreement. If the CITY uses any design, device, materials or works covered by letters, service mark, trademark, patent, copyright or any other intellectual property right, it is mutually agreed and understood without exceptions that the CITY shall be liable for all royalties or costs arising from the use of such design. device or materials in any way involved in the activities contemplated by this Agreement. L. SOVEREIGN IMMUNITY: No provision contained in this Agreement shall be deemed a waiver of either Parties sovereign immunity. M. SECURITY AND SUPERVISION: The CITY shall provide proper supervision and security of the DEMISED AREA at all times during the Approved City Schedule of Use as further outlined in Article V of this Agreement. XXXV II. ENTIRE AGREEMENT This Agreement and all Exhibits attached hereto, constitute the entire agreement between the Parties and supersede all previous negotiations. and it may be modified only by an agreement in writing signed by the BOARD and the CITY. [INDIVIDUAL SIGNATURE PAGES FOLLOW] Page 28 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 IN WITNESS WHEREOF, the BOARD and CITY have caused this Agreement to be executed by their respective and duly authorized officers the day and year first written above. WITNESSES AS TO THE BOARD: BOARD: THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA By: Print Name: Alberto M. Carvalho Superintendent of Schools Date: Print Name: RECOMMENDED: Jaime G. Torrens Chief of Staff Date: TO THE BOARD: APPROVED AS TO TO THE BOARD: APPROVED AS TO RISK FORM AND LEGAL SUFFICIENCY: MANAGEMENT ISSUES: Office of Risk and Benefits Management By: School Board Attorney By: Date: Chief Risk and Benefits Management Date: TO THE BOARD: APPROVED AS TO TREASURY MANAGEMENT ISSUES: By: Treasurer Date: Page 29 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 WITNESSES AS TO THE CITY: CITY: CITY OF MIAMI BEACH l—DocuSigned by: DocuSigned by: DS ^ N� By: JimokyNAr i i i�iy Morales P iNma D744Ees1 i e Rosenfeld Namse: 28CA18194070496 Title: City Manage r DocuSigned by: Date:9/28/2020 1 3:16 PM EDT L17112NWAW&046n391341nROBar ATTEST: c—DocuSigned by: 444 \P\V``ll 8�� �,,,i, City {° /2020 I 5:45 PM EDT -'�•' -�1 y �6 Date: *:INCORPORATED' �ii ;: ,&13_ TO THE CITY: APPROVED AS TO i1 o FORM,LANGUAGE & FOR EXECUTION: °''�RCH26��°' " By: Ow ! Or; f City Attorney .,`451 Date: °I 4-4 12_6 Page 30 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21 20 DocuSign Envelope ID:3458153F-150A-4267-648D-87A2C584D6B3 EXHIBIT "A" TO JOINT USE AGREEMENT DEMISED AREA [consisting of 2 pages, including this title page] Page 31 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B480-87A2C584D6B3 EXHIBIT "B" TO JOINT USE AGREEMENT CERTIFICATE OF OCCUPANCY, CERTIFICATE OF COMPLETION OR EQUIVALENT [consisting of pages, including this title page] [to be attached upon completion of the Work and issuance of same by the BOARD] Page 32 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07.21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 EXHIBIT "C" TO JOINT USE AGREEMENT WORK [consisting of_ pages, including this title page] Page 33 of 33 Joint Use Agreement/City of Miami Beach/South Pointe Elementary School/FINAL 07 21.20 DocuSign Envelope ID:3458153F-150A-42B7-B48D-87A2C584D6B3 y X I . 0 II El o �,I • Z I -- -. ___ I m . m m E D ' O nx D �,I nz z cow JD cn I ,© _ ! � lm z m z _+iotir � y Y Q r R ilik Aft/PA m *i o rd m Z Z -11 I. 1 11 is-\\ 11 -n i• c- t ' g x rn m O mO Z MZ i N rn m ZC1 D =u 2 m ' t m= Z g x m 2 O C x D z r m a 2 .. \ m Z m - I of o i SOUTH POINTE ELEMENTARY SCHOOL MIAMI-DADE COUNTY PUBLIC SCHOOLS �l4 s 1050 FOURTH STREET 1450N.E.2ND AVENUE MIAMI BEACH, FLORIDA 33139 MIAMI.FLORIDA 33132 -,