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HomeMy Public PortalAbout2008 Agreement for use of basketball courts.tifRESOLUTION NO. 2008-52 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING AND AUTHORIZING THE EXECUTION OF A LICENSE AGREEMENT WITH THE KEY BISCAYNE PRESBYTERIAN CHURCH, INC., FOR USE OF BASKETBALL COURTS AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village Council has determined that it has a need for playing facility access for its various youth recreation programs; and WHEREAS, as a means of addressing this need for playing facility access, the Village Council has determined that it is in the best interests of the Village to enter into an agreement with THE KEY BISCAYNE PRESBYTERIAN CHURCH (the "Church") whereby the Church grants the Village limited access to its basketball facilities; and WHEREAS, the Church and the Village have entered into an agreement setting forth the scope and use of these facilities. NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS: Section 1. Recitals Adopted. That each of the recitals stated above is hereby adopted and confirmed. Section 2. Agreement Approved. That the attached agreement, which sets forth the terms upon which the Church and the Village have agreed to grant access to and use the Church facilities, is hereby approved and the Village Manager is authorized to execute the Agreement once approved by the Village Attorney as to form and legal sufficiency.. Section 3. Effective Date. That this Resolution shall be effective immediately upon adoption hereof and shall be applied retroactively as indicated in the Agreement . PASSED AND ADOPTED this 14th day of October , 2008. MAYOR ROBERT L. VERNON CONCHITA H. ALVAREZ, CMC, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIEN VILLAGE A O' C:\OFFICE\WPWIN\RESO\2008\2008 KBPC Resolutionv3.rtf ) 2 Conchita Alvarez From: Myriam Restrepo Sent: Thursday, February 19, 2009 9:26 AM To: Conchita Alvarez Subject: FW: KBPC-License Agreement -COPY Original Message From: Todd Hofferberth Sent: Wednesday, February 18, 2009 4:26 PM To: Myriam Restrepo Subject: FW: KBPC-License Agreement -COPY This email is from the attorney from the Presbyterian Church and serves to notify why a signed copy of the agreement was not returned to the Village. Original Message From: Gil Acevedo [mailto:GAcevedo@robertallenlaw.com] Sent: Thursday, February 12, 2009 3:31 PM To: Todd Hofferberth Cc: Eduardo M. Soto Subject: RE: KBPC-License Agreement -COPY We never finalized the deal, so I asked the Church not to execute it. Gil 0. Acevedo Robert Allen Law Tel. 305-372-3300, Ext. 19 Fax 305-379-7018 gacevedoOrobertallenlaw.com Original Message From: Todd Hofferberth [mailto:thofferberth@keybiscayne.fl.gov] Sent: Thursday, February 12, 2009 1:14 PM To: Gil Acevedo Subject: RE: KBPC-License Agreement -COPY Gil, Do you have a copy signed by the church? This one still has the note by the signature line. The Village Clerk needs a completed version for her records. Thank you Todd Original Message From: Gil Acevedo <GAcevedo@robertallenlaw.com> Sent: Thursday, February 12, 2009 1:03 PM To: Todd Hofferberth <thofferberth@keybiscayne.fl.gov> Cc: Eduardo M. Soto <ESoto@wsh-law.com>; KBPC Office <office@kbpc.org> Subject: KBPC-License Agreement -COPY Todd: 1 Per your request, attached is a copy of the final version of the License Agreement. Best regards, Gil 0. Acevedo Robert Allen Law The Four Seasons Office Tower 1441 Brickell Avenue, Suite 1400 Miami, FL 33131 Tel. 305-372-3300, Ext. 19 Fax 305-379-7018 gacevedoOrobertallenlaw.com www.robertallenlaw.com This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure. If you are not the intended recipient, please do not disseminate, distribute or copy this communication by e-mail or otherwise. Instead, please notify us immediately by return e-mail (including the original message in your reply) and by telephone (you may call us collect in Miami (at 1-305-372-3300)), and then, delete and discard all copies of the e- mail. In addition, this message cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by any governmental taxing authority or agency. Thank you. 2 REVOCABLE LICENSE AGREEMENT THIS REVOCABLE LICENSE AGREEMENT (the "Agreement") is made and entered into on October 14 , 2008 (the "Effective Date"), by and between VILLAGE OF KEY BISCAYNE, a Florida municipal corporation (the "Village") and KEY BISCAYNE PRESBYTERIAN CHURCH, INC., a Florida non-profit corporation (the "Church"). RECITALS A. Church is the fee simple title holder and current owner of that certain real property located at 160 Harbor Drive, Key Biscayne, Florida, in Miami -Dade County, Florida (the "Property"). B. Village desires to obtain from Church a revocable license (the "License") to use a certain area of the Property for the purpose of providing recreational services to the members of the community of the Village. C. A diagram of the area to which Village is requesting a license is attached hereto as Exhibit "A" and by reference made a part hereof (the "Licensed Area"). D. Village has now requested that Church enter into an agreement with respect to the granting of a revocable license to use the Licensed Area, and Lender has agreed to same, subject to the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the mutual covenants of the parties set forth in this Agreement, and other valuable consideration, the sufficiency and receipt of which is acknowledged by the parties, it is hereby agreed by and between the parties hereto as follows: AGREEMENT 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference. 2. Licensed Area. The Licensed Area consists of a portion of the Property with an area of approximately 50,000 square feet illustrated in Exhibit "A". The Licensed Area does not include access to the interior of buildings and structures on the Property, except for the designated storage cages as noted in Section 5 below. 3. Term. The term of the License (the "Term") shall commence on October 27, 2008, (the "Commencement Date") and shall expire on February 28, 2009 (the "Expiration Date"), except as may be sooner terminated in accordance with the terms of this Agreement. The definition of "Term" shall include all extensions and renewal terms hereof. u:\My Documents\Chip\Basketball\License Agreement KBPC GA Clean 10-14-08.doc 4. License and Use. a. License. The Church grants to Village a revocable license to access the Licensed Area for the purpose of providing recreational services to the members of the community of the Village of Key Biscayne and for no other purpose, subject to the terms and conditions specified herein. b. Use. Church hereby grants Village the right to use and access the Licensed Area every Monday, Wednesday, and Friday from 5:30 p.m. to 9:00 p.m., Eastern Standard Time, throughout the Term. The Village may use the Licensed Area on a Saturday, provided, however, that the Church approves in writing prior to use. Within 10 days of this signature hereof, Village shall provide Church, a list of dates on which Village intends to use the Licensed Area, which dates shall be the dates on which the license shall be in effect. c. In the event that Church hosts a special event and said event is in conflict with the Village's use of the Licensed Area and the Property, Village shall accommodate Church and cancel or make alternate arrangements in connection with its activities, provided that Church notify Village at least twenty-four (24) hours prior to such special event. In case of a special event,' as mentioned herein, the Church shall reduce the License Fee by the Use Fee (as defined below) or reimburse Village the Use Fee for each day the Village is unable to use the Licensed Area on any given day stated on the Schedule of Use attached hereto. 5. Personal Property. Village shall be permitted to store certain items, machinery and equipment (collectively, the "Personal Property") in the designated storage cages within the Licensed Area throughout the Term pursuant to the rules and procedures stated herein. 6. License Fee. Village shall pay to Church a license fee of TWO THOUSAND TWO HUNDRED FIFTY AND 00/100 DOLLARS ($2,250.00) (the "License Fee"). This fee was calculated by multiplying the use fee of $50.00 (the "Use Fee") for each day that the Village anticipates entering upon, occupying, and making use of the Licensed Area pursuant to the attached Schedule of Use, which is approximately 45 uses. Village shall pay $1,125 upon execution of this Agreement ("Initial Payment") and the remaining balance of $1,125 on March 6, 2009 ("Final Payment"). Additional excess in the number of the estimated uses herein shall be subject to Church's prior written consent, and any additional amount owed shall be paid at the time the Final Payment is made. Church shall receive a total payment no less than the License Fee, unless the Church exercises its right to terminate this Agreement prior to the Expiration Date or as set forth in Paragraph 4(c). In the event that the Church exercises its right of early termination, then the License Fee shall be prorated based on the number of days that this Agreement is in effect up through the Church's requested early termination date. 7. Expiration and Termination. The License shall terminate in its entirety on the Expiration Date. Upon expiration of the License, Village shall immediately quit and surrender the Licensed Area as required hereby. The Term may be extended or renewed by written mutual consent of the parties. 2 This Agreement may be terminated by either party prior to the Expiration Date. Early termination of this Agreement shall be effective seven (7) days after delivery of the notice of termination to the other party. In addition to any and all other rights or remedies provided in this License Agreement or which Church may have at law, in equity, or otherwise, Church may, at its sole and absolute discretion, immediately terminate this Agreement, without advanced notice, prior to the Expiration Date effective upon Church's delivery of written notice to Village of the occurrence of any of the following: (a) material breach of the Agreement, including, but not limited to, Village's failure to make a payment of any amount owed to Church when and as the same is due; (b) commission by Village, its agents, employees, invitees, or guests of an act of dishonesty, or other acts that could adversely affect or be reasonably expected to injure the reputation of the Church, its employees or its related entities; (c) violation of Church's policies or practices, including, but not limited to, the use of drugs or alcohol in the Licensed Area or the Property, or an arrest or conviction of a felony or of any crime involving moral turpitude, fraud or misrepresentation by any of the village's representatives, agents, or employees. Village shall quit and surrender to Church the Licensed Area in at least as good order and condition as the order and condition that existed on the Commencement Date, with exception to ordinary wear and tearand damage by hurricane, flood or fire ("Casualty"). Upon the expiration or earlier termination of the Term, Village shall remove all Personal Property and Improvements (as defined below) from the Licensed Area and repair all damage caused by such removal or otherwise, if any, within seven (7) days from the termination or Expiration Date. 8. As -Is. The Licensed Area shall be used by Village, and Village agrees to accept the Licensed Area in its "as is" condition as of the Commencement Date. Church has not made nor makes any representations or promises with respect to the Licensed Area or the Property, and Village agrees that Church does not have any obligation to perform any work or otherwise prepare the Licensed Area for the use by Village. • 9. Maintenance and Repairs. Village agrees that it shall be solely responsible for the maintenance of the Licensed Area. Village, at Village's sole cost and expense, shall repair any damage or injury to the Licensed Area or Property, caused by Village, or Village's agents, employees, invitees or guests. Village shall also be responsible maintenance of the storage cages and trimming of the trees and bushes adjacent to such storage cages. 10. Improvements. Village shall not make any alterations, installations, improvements, additions or other physical changes (collectively, "Improvements") in or about the Licensed Area without the prior written consent of Church. Unauthorized Improvements shall be removed immediately upon notice by Church and if not removed immediately, may be removed by Church at the expense of Village. 3 11. Storage and Clean -Up. Village shall store its Personal Property after each and every use of the Licensed Area in the appropriate location mutually agreed to by the parties in writing and/or as indicated below: (a) Any and all portable lights shall be stored by the wall on the north end of the two-story building located on the north side of the Property and adjacent to the mangroves, depicted as Site "A" and "B" within Exhibit "A," and away from public sight; (b) Any and all portable goals shall be stored in an upright position inside the cage within Sites "A" and "B" within Exhibit "A." Village shall secure the cage with a lock and chain and provide Church with an extra key to be kept in Church's office, which key shall be returned to Village upon expiration or termination of this Agreement; and, (c) The fixed -base basketball hoops shall be adjusted to 10 feet in height. After each use, Village shall also be responsible for cleaning and removing all trash, debris, and waste from the Licensed Area, including the east -side parking lot, and from other areas designated by Church, unless otherwise agreed to in writing by the parties. Village shall also be responsible for cleaning and removing all trash, debris, and waste from other areas in the Property, where it is caused by the Village, its agents, employees, invitees and guests. In the event that that Village does not comply with the storage and clean-up procedures pursuant to this section, Village shall be considered to be in default under this Agreement, and Church reserves the right to, at its sole and absolute discretion, store the Personal Property of Village and charge Village the fair market value for that service or hire an independent contractor to perform this service solely at the expense of Village. Village shall be liable to Church for the cost and expense to cure the default and shall make payment to Church upon demand. 12. Ingress and Egress; Parental Consents. Village, its agents, employees, invitees and guests shall have the non-exclusive right to ingress and egress to the Property during those dates and times mutually agreed upon by the parties as provided in this Agreement. Notwithstanding any other provision of this Agreement: (a) Village shall not be allowed access or permitted to use the Licensed Area, unless Village delivers to Church a roster or list of every child registered with Village to participate in any and all 'of its recreational and athletic activities, along with copies of each participating child's Parental Consent and Waiver Form (attached hereto as Exhibit "C") executed by at least one parent and (b) Village shall not permit any child to participate in any activity in the Licensed Area until Village complies with the requirement of this section. 13. Parking. Parking is limited to the parking spaces within the Licensed Area, unless otherwise agreed to in writing by the parties. Additional parking is available on Harbor Drive. 14. Default. Except as otherwise provided herein, the Church shall provide Village with written notice of any failure to perform or of any noncompliance of the terms and conditions 4 contained herein to be performed by Village. Village shall have ten (10) days to perform or comply with the terms in this Agreement. If Village fails to cure said default or does not provide the Church with a written response or explanation or indicating the status of Village's resolution of the violations and providing for a schedule to diligently correct all deficiencies within ten (10) days from receipt of said notice, the Church shall have the right to terminate this Agreement, without penalty, immediately upon the delivery of written notice to Village. Village shall provide Church with written notice of any failure by Church to perform or comply with the terms and conditions contained herein to be performed by the Church. If the Church fails to cure said default within ten (10) days of receipt of written notice, or does not provide Village with a written response within ten (10) days after receiving notification, indicating the status of the Church's resolution of the violations and providing for a schedule to diligently correct all deficiencies, Village shall have the right to terminate this Agreement, without penalty, immediately upon delivery of written notice to Church. 15. Casualty and Restoration. If the Property, the Licensed Area, or any part thereof shall be damaged or destroyed by Casualty as to render the Property or the Licensed Area unusable by either party for a consecutive period of more than thirty (30) days, either Church or Village may terminate this Agreement by giving fifteen (15) days written notice to the other party. If the Agreement terminates pursuant to this Section, this Agreement shall terminate as of the date indicated in such notice and such notice shall be deemed to be the Expiration Date. 16. Loss and Damage. Village hereby agrees that Church shall not be liable for any loss, damage or injury of any kind or character to any person or property (i) caused by any defect in any building, structure, or other improvements on, or the physical condition of, the Licensed Area, the Property, or in any equipment or other facility located thereon; (ii) caused by or arising from any act or omission of Village, or of any of its agents, employees, guests or invitees; (iii) arising from any accident on the Property or any fire or other casualty thereon; or (iv) arising from any other cause; unless, in any such events, caused by the gross neglect or willful act or omission of the Church. 17. Indemnification. Village shall defend, indemnify and save and hold Church harmless from and against any and all liabilities, obligations, losses, damages, injunctions, suits, actions, fines, penalties, claims, demands, costs and expenses of every kind or nature, including reasonable attorneys' fees, including all pretrial and appellate proceedings (but not against any of the same to the extent that a grossly negligent or willful act or omission of Church gave rise thereto), arising from or out of (a) any failure by Village to perform or comply with any of the terms, provisions, covenants or conditions within this Agreement, without limitation to failure to comply with the rules and regulations of Church; (b) any accident, injury, or damage which shall happen at, in or upon the Licensed Area, relating to or arising from Village's use of the Licensed Area, however occurring; (c) any matter or thing growing out of the condition, occupation, maintenance, alteration, repair, use, or operation of the Licensed Area or Property by any person, or the operation of the business conducted therefrom; (d) any failure of Village, and/or its employees, agents, invitees, customers, or contractors, to comply with any laws, ordinances, requirements, orders, directions, rules or regulations of any governmental authority; (e) any contamination of the Premises occasioned 5 by the use, transportation, storage, spillage or discharge of any Hazardous Substance by Village or by its employees, agents, invitees, customers, Villages or contractors; (g) any other act or omission of Village, its employees, agents, invitees, customers, Villages, or contractors, including without limitation, for example, the failure to obtain the Parental Consent and Waiver forms called for in Section 12 above. Village's indemnity obligations under this Section and elsewhere in this Agreement arising prior to the termination or assignment of this Agreement shall survive any such termination or assignment. 18. Signs. Village shall not place any signs or symbols on any portion of the Property or Licensed Area without the prior written approval of Church. 19. Entry And Inspection. Village's use of the Premises is non-exclusive, and Church may enter at any time and for any purpose while Village is utilizing the Premises or at any other time. 20. Nuisance. Village shall not use the Premises for any unlawful purpose or in anyway which will constitute a nuisance or unreasonably interfere with Church's use of the Property or the properties of adjacent owners. 21. Insurance. Prior to the first use of the Licensed Area, Village, at its sole cost and expense, shall provide Church satisfactory evidence of liability coverage in the amount of ONE MILLION AND 00/100 DOLLARS ($1,000,000.00) Dollars per occurrence, and THREE MILLION AND 00/100 DOLLARS ($3,000,000.00) in the aggregate ("Certificate of Insurance"). The Church must be a certificate holder on any policy or insurance purchased by Village in compliance with this Agreement, and it is entitled to receive a copy of any policies of insurance within thirty (30) days of the effective date of this Agreement. Village shall obtain the insurer's agreement to give not less than thirty (30) days advance notice to the Church before cancellation, expiration or alteration of any policy of insurance. Church shall be named as an additional insured and said policy will be primary over any other collectible insurance for any liability arising out of claims in connection with this Agreement. In the event that the Church cannot be named as an additional insured on Village's policy, Church may, in its sole and absolute discretion, request in writing that the Village purchase, prior to the Commencement Date, an umbrella policy naming Church as the insured to cover the difference between the liability coverage requested herein and the Village's liability coverage, if higher, at Village's sole cost and expense. Village agrees to maintain such policies of insurance during the term of this Agreement, and any failure to do so will constitute a breach of the terms of the Agreement. All insurance shall be placed with companies admitted to do business in the State of Florida. The Certificate of Insurance is attached hereto as Exhibit "D." 22. Liability. Village hereby assumes all financial, administrative and legal responsibility in connection with, related to, or arising out of its use of the Licensed Area and the Property. Except as specifically provided by the terms of this Agreement and permitted by law, nothing in this Agreement will be construed to affect in any way Village's rights, privileges, and immunities, including the provisions and monetary limitations of Section 768.28 (5), Florida Statutes, which limitations shall be applicable regardless of whether such 6 provisions would otherwise apply. The provisions of this Section will survive the termination or expiration of this Agreement. 23. Assignment. Village shall not assign Village's rights or delegate Village duties under this License (whether by operation of law, transfer of interest in Village or otherwise) or permit the Licensed Area or any part thereof to be occupied or used by any other person or entity, serving as an agent of Village. Any transfer contrary to the provisions of this Section shall be null and void. 24. Third Parties. Neither Village nor Church intend to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. 25. Notices. All notices, requests, demands, elections, consents, approvals and other communications hereunder (collectively, the "Notices") shall be in writing and shall be either personally delivered, sent by facsimile with receipt acknowledged, or deposited with any nationally recognized overnight carrier that routinely issues receipts and addressed as follows: If to Village: Todd Hofferberth Director of Parks and Recreation Village of Key Biscayne 88 West McIntyre Street Key Biscayne, Florida 33149 With a copy to: Weiss Serota Helfman Pastoriza Cole and Boniske, P.L. 2525 Ponce de Leon Blvd., Suite 700 Coral Gables, Florida 33134 Attn: Stephen J. Helfman, Esq. If to Church: Allan Miller Director of Operations Key Biscayne Presbyterian Church 160 Harbor Drive Key Biscayne, Florida 33149 With a copy to: Robert Allen Law 1441 Brickell Avenue, Suite 1400 Miami, Florida 33131 Attn: Robert Allen, Esq. All notices shall be deemed given as of the date of delivery. Either Village or Church may add additional addresses or change its address for purposes of receipt of any such communication by giving ten (10) days prior written notice of such change to the other party in the manner prescribed in this Agreement. 7 26. License and Not a Sublease/Subordination. This License is not to be construed as, in any way, granting to Village any interest as a tenant in the Licensed Area. It is intended for this to merely grants to Village a license to enter upon and use the Licensed Area in accordance with the terms hereof and shall not be deemed to grant to Village a leasehold or other real property interest in the Licensed Area. 27. Rules and Regulations. The Church may promulgate and enforce reasonable rules and regulations governing the use of the Property by Village, and Village shall provide adequate supervision of the Licensed Area every time Village conducts or sanctions Village activities thereon. The Rules and Regulations are attached hereto as Exhibit "E." 28. Compliance with Laws. Village shall not commit nor permit any violations of applicable federal, state, county and municipal laws, ordinances, resolutions and governmental rules, regulations and orders, as may be in effect now or at any time during the term of this Agreement, all as may be amended, which are applicable to the Village's operations conducted within the Licensed Area and at the Property. A violation of any such laws, ordinances, resolutions, rules, regulations or orders, as amended, shall constitute a material breach of this Agreement, and in such event, Church shall be entitled to exercise any and all rights and remedies hereunder and at law and in equity. 29. Miscellaneous. a. Church and Village understand, agree, and acknowledge that (a) this Agreement has been freely negotiated by both parties; and (b) in any controversy, dispute, or contest over the meaning, interpretation, validity, or enforceability of this Agreement or any of its terms or conditions, there shall be no inference, presumption, or conclusion drawn whatsoever against either party by virtue of that party having drafted this Agreement of any portion thereof. b. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of Church and Village and their respective legal representatives, successors, and assigns. c. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be invalid or unenforceable to any extent, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of the agreement between the parties. d. Both 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, in the use of the Licensed Area. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of the other party, effective the date of the court order. 8 e. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement has been duly authorized by Village and Church action. f. This Agreement may be signed in two or more counterparts, each of which constitutes the agreement of the parties and each of which will be treated as an original. g. Village and Church acknowledge that each of them and their counsel have had an opportunity to review this Agreement, and that this Agreement sets forth the entire agreement between Church and Village with respect to the subject matter of this Agreement. This Agreement supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, between the parties. h. This agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida applicable to contracts made and to be performed entirely in the state. The parties agree that venue for any legal action instituted in connection with this agreement shall be in Miami -Dade County, Florida. i. THE PARTIES HEREBY, THROUGH THIS PROVISION, EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES TO THIS AGREEMENT AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF VILLAGE AND CHURCH, VILLAGE'S LICENSE USE OR OCCUPANCY OF THE LICENSED AREA, OR ANY OTHER CLAIMS (EXCEPT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE), AND ANY EMERGENCY STATUTORY OR ANY OTHER STATUTORY REMEDY. j. This Agreement does not make either pary the agent, legal representative, partner or joint venturer of the other for any purpose whatsoever. Village has no right to create any obligation or responsibility, express or implied, on behalf of or in the name of Church, or to bind Church in any manner or concerning any matter. k. The captions of the various articles and sections of this Lease are for convenience only and do not necessarily define, limit, describe, or construe the contents of such articles or sections. 1. Village recordation of this Lease or any memorandum or short form of it will be void and a default under this Agreement. m. The waiver by Church of any agreement, condition, or provision contained in this Lease will not be deemed to be a waiver of any subsequent breach of the same or any other agreement, condition, or provision contained in this Agreement, nor will any custom or practice that may grow up between the parties in the administration of the terms of this Agreement be construed to waive or to lessen the right of Church to insist upon the performance by Village in strict accordance with the terms of this Agreement. The subsequent acceptance of the License 9 Fee will not be deemed to be a waiver of any preceding breach by Church of any agreement, condition, or provision of this Agreement, other than the failure of Village to pay the particular License Fee so accepted, regardless of Church's knowledge of such preceding breach at the time of acceptance of such rent. n. Village hereby agrees to pay for reasonable attorney's fees and costs Church incurs in connection with negotiating, drafting, reviewing, and finalizing this Agreement, which Village acknowledges has not yet been paid. Said amount shall be Two Thousand and 00/100 Dollars ($2,000.00), which shall be paid on or prior to the Effective Date. 10 IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date first mentioned above. VILLAGE: VILLAGE OF KEY BISCAYNE, a Florida municipal co • ration By: Name: Its: etat 1 to CHURCH: KEY BISCAYNE PRESBYTERIAN CHURCH, INC., a Florida non-profit corporation By: Allan Miller, Director of Operations VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: f VILLAGE ATT I RN 11 "EXHIBIT A" LICENSED AREA EXHIBIT A LICENSED AREA (The Property shall consist of the area highlighted in the attached site map.) 12 EXHIBIT B SCHEDULE OF USE EXHIBIT B: SCHEDULE OF USE Month Days Total Days Cost ($50/day) October 27 &29 2 • $ 100.00 November 3, 5, 7, 17, 19, 10, 12, 14, 20, 24, 26 11 $ 550.00 December 1, 3, 5, 15, 17, 8, 10, 12, 19 9 $ 450.00 January 5, 7, 9, 21, 23, 12, 14, 16, 26, 28, 30 11 $ 550.00 February 2, 4, 6, 16, 18, 27 9, 11, 13, 20, 23, 25, 12 $ 600.00 Total 45 $ 2,250.00 13 EXHIBIT C PARENTAL CONSENT AND WAIVER FORMS 14 VILLAGE OF KEY BISCAYNE WAIVER FOR ADULT As a user of the KEY BISCAYNE PRESBYTERIAN CHURCH, INC., a Florida non- profit corporation (the "Church"), basketball facilities pursuant to the Village of Key Biscayne (the "Village") Recreation Department program, I hereby voluntarily assume the risk of any loss, injury or damage to myself or my property, which in any way arises out of the use of such, premises or equipment or participation in such program activities, which said loss, injury or damage is sustained while upon said facilities or premises or using such equipment, participating in said activities or being transported therefrom or thereto. Further, I do hereby waive any claim against the Church and Village and their contractors, agents, servants and employees, arising from said loss, injury or damage and do covenant not to sue Church or Village or their contractors, agents, servants and employees, thereon, regardless of whether such loss, injury or damage is caused in whole or in part by the negligence of said Church and/or Village or by the negligence of the contractors, agents, servants, and employees of the Church and/or Village. I hereby give permission for the Village to call my physician and/or arrange for response by emergency medical technician or for transportation to a hospital, in the event of any injury to myself, although I understand that the Village assumes no responsibility to do so. Read and Agreed to this day of , 2008. Participant signature Name (print) Witnessed: By: By: 15 WAIVER FOR MINORS (by adult) As the parent or guardian of a minor child using the KEY BISCAYNE PRESBYTERIAN CHURCH, INC., a Florida non-profit corporation (the "Church"), basketball facilities, premises or equipment pursuant to the Recreation Department program of the Village of Key Biscayne (the "Village"), I hereby waive any claim against the Church and Village and their contractors, agents, servants and employees, hereafter arising from injuries to said child, which said injury is sustained while upon said facilities or premises, using such facilities or equipment, participating in Village program activities or being transported therefrom or thereto, regardless of whether such injury is caused in whole or in part by the negligence of Church and/or Village or by the negligence of the contractors, agents, servants or employees of the Church and/or Village, and I do covenant to indemnify, hold harmless and defend the Church and Village, their contractors, agents, servants and employees from any claim, liability or damages hereafter arising out of any injury to said child, regardless of whether such injury to said child is caused in whole or in part by the negligence of said Church and/or Village or by the negligence of the contractors, agents, servants and employees of Church and/or Village. I hereby give permission for the Village to call my physician and/or arrange for response by emergency medical technician or for transportation to a hospital, in the event of any injury to said child, although I understand that the Village assumes no responsibility to do so. Read and Agreed to this day of , 2008. Signature of Parent or Guardian Name (print) Name of child: (print) Witnessed: By: By: 16 RELEASE OF ALL CLAIMS I, the undersigned, (Print participant's name), do hereby agree, certify and promise as follows: 1. For good and valuable consideration received, including the use of the facilities and grounds of Key Biscayne Presbyterian Church and the lands surrounding it in Key Biscayne, Miami -Dade County, Florida, I expressly release and discharge Key Biscayne Presbyterian Church, Inc., its officers, directors, elders and staff, from any liability whatsoever it may owe to myself, my heirs or assigns resulting in any way from any basketball and related activities, the ownership or operation of the church premises or the surrounding lands or of any improvement or instrumentality thereon because of injury of any kind whatsoever , or death, to me or damage to my property or to the property of others caused by any reason whatsoever INCLUDING, BUT NOT LIMITED TO ACTS OR OMISSIONS CONSTITUTING NEGLIGENCE BY KEY BISCAYNE PRESBYTERIAN CHURCH, INC. OR ANY OTHER PERSON OR PARTY WHATSOEVER. 3. I further covenant not to sue or to bring any legal or equitable action against Key Biscayne Presbyterian Church for any reason whatsoever INCLUDING ANY NEGLIGENCE ON BEHALF OF KEY BISCAYNE PRESBYTERIAN CHURCH, INC. which might stem from any basketball and related activities or the ownership or operation of the grounds, buildings and/or premises or my participation in any basketball or related activity thereon or at any other location, and I expressly waive any legal or equitable claim that I might have thereby arising. have read the above and do sign voluntarily and freely. (Signature of participant or, if under 18, parent) (Print full name) Date: , 2008 17 EXHIBIT D CERTIFICATE OF INSURANCE 18 CERTIFICATE OF COVERAGE Certificate Holder KEY BISCAYNE PRESBYTERIAN CHURCH 160 HARBOR DRIVE KEY BISCAYNE FL 33149 Administrator Issue Date 10/09/08 Florida League of Cities, Inc. Public Risk Services P.O. Box 530065 Orlando, Florida 32853-0065 COVERAGES THIS IS TO CERTIFY THAT THE AGREEMENT BELOW HAS BEEN ISSUED TO THE DESIGNATED MEMBER FOR THE COVERAGE PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE COVERAGE AFFORDED BY THE AGREEMENT DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH AGREEMENT. COVERAGE PROVIDED BY: FLORIDA MUNICIPAL INSURANCE TRUST AGREEMENT NUMBER: FMIT 0298 COVERAGE PERIOD: FROM 10/1/08 COVERAGE PERIOD: TO 10/1/09 12:01 AM STANDARD TIME TYPE General 0 Comprehensive ►.� 0 @ 0 0 0 ►:2 Automobile • ■ • • OF COVERAGE - LIABILITY Liability General Liability, Bodily Injury, Property Damage and Personal Injury Errors and Omissions Liability Supplemental Employment Practice Employee Benefits Program Administration Liability Medical Attendants'/Medical Directors' Malpractice Liability Broad Form Property Damage Law Enforcement Liability Underground, Explosion & Collapse Hazard Limits of Liability * Combined Single Limit Deductible N/A Liability All owned Autos (Private Passenger) Alt owned Autos (Other than Private Passenger) Hired Autos Non Owned Autos Limits of Liability * Combined Single Limit Deductible N/A TYPE ■ ■ • • ■ • • ■ • OF COVERAGE - PROPERTY Buildings III Basic Form ■ Special Form Personal Property • Basic Form • Special Form Agreed Amount Deductible N/A Coinsurance N/A Blanket Specific Replacement Cost Actual Cash Value Limits of Liability on ■ File Miscellaneous ■ ■ • ■ Inland Marine Electronic Data Processing Bond with Administrator TYPE OF COVERAGE - WORKERS' COMPENSATION ■ Statutory Workers' Compensation ■ Employers Liability S1,000,000 Each Accident $1,000,000 By Disease $1,000,000 Aggregate By Disease • Deductible N/A ■ Automobile/Equipment • — Deductible Physical Damage N/A - Comprehensive - Auto N/A - Collision - Auto N/A - Miscellaneous Equipment Other The limit of liability is $100,000 Bodily Injury and/or Property Damage per person or $200,000 Bodily Injury and/or Property Damage per occurrence. These specific limits of liability are increased to $5,000,000 (combined single limit) per occurrence, solely for any liability resulting from entry of a claims bill pursuant to Section 768.28 (5) Florida Statutes or liability imposed pursuant to Federal Law or actions outside the State of Florida. Description of Operations/Locations/Vehicles/Special Items • RE: Use of Basketball Courts. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS F IGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE AGREEMENT ABOVE. / DESIGNATED MEMBER VILLAGE OF KEY BISCAYNE 88 WEST MCINTYRE STREET KEY BISCAYNE FL 33149 CANCELLATIONS SHOULD ANY PART OF THE ABOVE DESCRIBED AGREEMENT BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 45 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED ABOVE, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE PROGRAM, ITS AGENTS OR REPRESENTATIVES. ,\\,t1 ._... AUTHORIZED REPRESENTATIVE FMIT-CERT (10/96( ACORD T. CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDD/YYYY) 11/06/2008 PRODUCER (678) 344-9994 Terry L Green & Associates P.O. BOX 367 3100 Five Forks Trickum Rd Snellville GA 30078- THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Key Biscayne Presbyterian Church 160 Harbor Drive Key Biscayne FL 33149- INSURERA Philadelphia Insurance INSURERB INSURER C INSURER D INSURERE COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD'L INSRD TYPE OF INSURANCE POUCY NUMBER POLICY EFFECTIVE DATE (MMIDDIYY) POUCY EXPIRATION DATE (MMIDDIYY) LIMITS A GENERAL LIABIUTY COMMERCIAL GENERAL LIABILITY PHPK361479 / / 10/28/2008 / / / / / / 10/28/2009 / / / / EACH OCCURRENCE $ 1, 000 , 000 X DAMAGE TO RENTED PREMISES (Ea occurrence) $ 300 , 000 CLAIMS MADE X OCCUR MEDEXP(Anyoneperson) $ 5,000 X Participants PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 3,000,000 GEN'L AGGREGATE LIMIT APPLIES PER POLICY n JEOCTPR- n LOC PRODUCTS - COMP/OP AGG $ 3,000,000 Particpants 1,000,000 AUTOMOBILE LIABIUTY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS / / / / / / / / / / / / / / / / COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LIABIUTY ANY AUTO / / / / AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY. AGG $ EXCESS/UMBRELLA LIABILITY / / / / / / / / EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ $ WORKERS COMPENSATION AND EMPLOYERS' UABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below / / / / / / / / TOC RY LIMITS OTH- ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E L. DISEASE - POLICY LIMIT $ OTHER / / / / / / / / / / / / DESCRIPTION OF OPERATIONSILOCATIONSNEHICLESIEXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Basketball Coverage Only CERTIFICATE HOLDER CANCELLATION ( ) Proof of Coverage ( ) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR UABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ACORD 25(2001/08) INS025 (0108).05 ELECTRONIC LASER FORMS, INC. - (800)327-0545 © ACORD CORPORATION 1988 Page 1 of 2 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001108) INS025 (0108).05 Page 2 of 2 EXHIBIT E RULES AND REGULATIONS 19 RULES & REGULATIONS for Events on Key Biscayne Presbyterian Church Property 1. Respect Staff at all times. 2. Respect one another and the property. 3. No cursing, using alcohol or any banned substances or bringing them on to the property. 4. Have a good attitude. 5. Be ready to learn. Do not be a " know-it-all." 6. No fighting. 7. Do not complain if something doesn't go your way. 8. Be a good sport and encourage your teammates during competition and practices. 9. Do your best with your God-given abilities. 10. Have a good time. Any infraction can result in definite or indefinite suspension. Board of Key Biscayne Presbyterian Church, Inc. Posted: November 7, 2008