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HomeMy WebLinkAboutExhibit-SUBTHIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT This document prepared by and after recordation rerum to: Iris Escarra, Esq. Greenberg Traurig 1221 Brickell Avenue 22nd Floor Miami. FL 33131 LICENSE AGREEMENT , THIS LICENSE AGREEMENT, ("AGREEMENT"), is made and entered into this day of APRIL 2010 (the "Effective Date") by and between PARKLANE TOWERS, LLC, a Florida limited liability company, its successors, heirs and assigns ("OWNER/DEVELOPER"), and the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, in the County of Miami -Dade ("CITY") the OWNEWDEVELOPER and the CITY are sometimes collectively referred to hereinafter as the "PARTIES"): RECITALS WHEREAS, OWNER/DEVELOPER is the owner of the two real properties described in Composite Exhibit A attached hereto and incorporated herein by reference ("PROJECT SITES"); and WHEREAS, the PROJECT SITES each obtained a Major Use Special Permit approval, Park Lane Towers by City of Miami Resolution Number R-05-0349 and 1550 Chelsea by City of Miami Resolution R-06-0190, as same may be modified from time to time (collectively, "RESOLUTIONS"), which authorizes certain developments to occur on the PROJECT SITES, said developments being hereinafter referred to as the "PROJECTS"; and WHEREAS, the CITY desires to use a the Park Lane Towers site located at 345 NE 32nd Street, Miami; Florida for passive park as depicted in Exhibit `B" ("LICENSED PROPERTY") ; and WHEREAS, OWNERIDEVELOPER desires certain commitments and assurances from the CITY as to OV NER/DEVELOPER'S rights to develop and use the PROJECTS SITES; NOW THEREFORE, in consideration of the premises and the mutual covenants, conditions and agreements contained herein, the OWNT ER/DEVELOPER and the CITY agree as follows: The Recitals set forth above are true and correct and are incorporated herein by reference. 2. OWINTER/DEVELOPER agrees that the CITY shall have an exclusive license to use the LICENSED PROPERTY for the exclusive purpose a passive park until such time as the PARTIES agree to terminate this AGREEMENT. The use shall begin within fifteen (15) days of the completion of the park improvements ("LICENSE"). Such IMPROVEMENTS, as MIA 181,168, 5720 r0-00557- Exhibit-SUC5 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT attached herein as Exhibit "D," shall be completed no later than Six (6) months from the Effective Date of this Agreement. The term of the LICENSE may be extended with agreement of the PARTIES. The term "LICENSE TERM," as used in this AGREEMENT, shall mean the LICENSE TERM which shall continue on an annual basis until such time as the AGREEMENT is terminated.. OWNERJDEVELOPER shall have the right, upon giving not less than one hundred and twenty (120) days prior written notice to the CITY, to terminate the LICENSE. The CITY shall have the right, upon giving not less than one hundred and twenty (120) days prior written notice to the OWNER/DEVELOPER, to terminate the LICENSE at any time. 3. The CITY shall honor the OWNER/DEVELOPER's rights to develop the PROJECTS, Park Lane Towers and 1550 Chelsea, in accordance with applicable laws and as approved by Resolution Numbers R-05-0349 and R-06-0190. The OWNER/DEVELOPER shall have a stay of time of its two present MUSP approvals, Park Lane Towers and 1550 Chelsea, as may be amended, during the term of this LICENSE, therefore during the effective dates of this LICENSE. TERM the MUSPs and any amendments thereto, shall not accrue time or expire. This LICENSE does not effect the MUSPs rights authorized by the City of Miami Zoning Code of Ordinances, as amended. Any MUSPs extensions permitted at the time of the execution of this AGREEMENT would be applicable at the termination of the LICENSE TERM, including two (2) additional twenty-four (24) month extensions permitted under Zoning Ordinance 11000 and Miami 21. 4. All rights and privileges under this AGREEMENT shall be honored from the EFFECTIVE DATE to when (i) the LICENSE TERIM expires or the LICENSE AGREEMENT is terminated in accordance with the terms of this AGREEMENT or (ii) the date the CITY returns complete possession and control of the LICENSED PROPERTY to the OWNER/DEVELOPER. Upon termination or expiration of the LICENSE TERM, the PARTIES shall execute, in a recordable form, a Notice of Termination of this AGREEMENT, which shall be recorded in the Public Records of Miami -Dade County, Florida. The CITY agrees that, unless requested by the OWNER/DEVELOPER, during the time of the LICENSE TERM pursuant to this AGREEMENT: (a) the CITY shall take no action, legislatively or otherwise, to modify the PROJECTS and (b) no modification of City Zoning Ordinance No. 11000, or modification or adoption of any other ordinance or regulation, that shall negatively impact the ability of the OWNER/DEVELOPER to develop the PROJECTS, except as would be approved under a substantial modification submitted by OWNTER/DEVELOPER. 5. During the LICENSE TERM and so long as the CITY has possession or control of the LICENSED PROPERTY, the OWNER/DEVELOPER shall maintain the LICENSED PROPERTY in a clean, safe, and orderly condition and it shall not allow any nuisance to occur upon the LICENSED PROPERTY. The OWNER/DEVELOPER shall be responsible for the payment of all reasonable costs of maintenance and all reasonable costs pertaining to the use of the LICENSED PROPERTY, including, but not limited to, the cost of security, electricity, water, sewer, and any other utilities. Notwithstanding any other provision of this AGREEMENT, the OWNER/DEVELOPER shall retain the right to enter and inspect the LICENSED PROPERTY at any time to: (a) determine that this AGREEMENT is being complied with by the CITY; and (b) to conduct any surveys, tests and sampling (including the taking of ground core samples) related to future development on the LICENSED PROPERTY (cumulatively "SURVEYING AND TESTING"), without, however, interfering, obstructing, or Page 2of10 MIA 181,168,572v I THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT diminishing the CITY's use of the LICENSED PROPERTY. The OWNER/DEVELOPER will provide the CITY with not less than 48 hours written notice of its intent to conduct SURVEYING AND TESTING on the LICENSED PROPERTY and after completing the SURVEYING AND TESTING will restore said property to the condition it was in prior to the SURVEYING AND TESTING. 6. Any improvements to the LICENSED PROPERTY during the LICENSE TERM shall be at the sole cost and expense of the OWNER'DEVELOPER, as set forth in Exhibit "D" attached hereto and incorporated herein, by reference. The OWNERIDEVELOPER's improvements to the LICENSED PROPERTY shall be limited to the installation of furniture, fountains, lighting, and landscaping (collectively, "IMPROVEMENTS"), unless otherwise agreed to in writing by the OWNER/DEVELOPER. Upon the expiration, or earlier termination of the LICENSE TERM, and all IMPROVEMENTS on the property shall remain the sole property of the OWNER/DEVELOPER and the CITY shall have no claim of right to such 14PROVEMENTS. 7. OWNERIDEVELOPER shall be responsible for the payment of ad valorem, property taxes, sales, use or any other taxes or governmental levies on the LICENSED PROPERTY and the PROJECT PROPERTY during the LICENSE TERM. OWNER/DEVELOPER retains the right to challenge the amount of any tax assessment imposed upon the LICENSED PROPERTY. The sole and exclusive use of the LICENCED PROPERTY during the LICENSE TERM shall be for a passive public park. 8. The City agrees to indemnify and hold harmless the OWNER/DEVELOPER to the extent and within the limitations of Section 768.28 Fla. Stat., and subject to the provisions of that Statute, whereby the City shall not be held liable to pay a bodily injury or property damage claim or judgment by any one person that exceeds 5100,000, or any claim or judgments or portions thereof, that, when totaled with all other occurrences, exceeds 5200,000, from any bodily and all personal injury or property damage claims, liabilities; losses and causes of action arising from the same claim which may arise solely as a result of the negligence of the City in connection with its rights and obligations under this AGREEMENT. The City retains all rights and sovereign immunity defenses available to it under Section 768.28, Fla. Stat., and this provision does not alter the city's sovereign inunuruty nor extend the City's liability beyond that established in Section 768.28, Fla. Stat. Nothing herein shall be deemed to indemnify the OWNER/DEVELOPER or any third party from any liability or claim arising out of the negligent performance or failure of perfonnance of the OWNER/DEVELOPER or its employees, agents, servants, partners, principals or subcontractors, or any unrelated third party. The OWNER/DEVELOPER expressly understands and agrees that any insurance protection required by this AGREEMENT or otherwise provided by the CITY shall not broaden or enlarge the duty to inderrinify beyond the express limitations of this section, nor does it apply to any other damages, claims, liabilities, losses and causes of action; except as herein provided. 9. The OWNER/DEVELOPER does hereby agree to indemnify and hold harmless the City, its officials, employees, agents and assigns from and _against any and all claims, damages, losses, and causes of action, resulting in bodily injury and/or property damage claim, arising solely out of the negligence of the OWNTER/DEVELOPER, its employees, agents and Page 3 of 10 MIA 161, 166, 5720 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN .AT END OF THIS DOCUMENT any contractors hired by the OWNER/DEVELOPER, directly in connection to the PROPERTY or its duties as the OWNERS and as the DEVELOPER of the PROPERTY. 10. The OWNEWDEVELOPER agrees to carry and keep in full force and effect at all times during the LICENSE TERM, a commercial general liability policy with limits of at least $2,000,000 (2 million) per occurrence, $4,000,000 (4 million) total policy aggregate affording coverage for bodily injury and property damage, including death in connection to this agreement as well as, but not limited to, all claims contemplated in sections 'S' and `9' contemplated, supra.. The certificate of insurance must include and protect against premises and operations liability, contingent and contractual exposures, products and completed operations and personal injury and advertising liability. In the event of a loss, the OWNER1DEVE LOPER shall be responsible for payment of any and all applicable policy deductibles associated with the loss .. The coverage must be placed with an insurance carrier authorized to do business in the State of Florida. The insurance carrier issuing the insurance policy must be rated no less than (A-) as to management, and no less than class (V) as to its financial strength by the last edition of Best Insurance Guide, or its equivalent, and such policy or certificate of insurance must be approved by Risk Management. The OWNER/DEVELOPER shall provide a certificate of insurance naming the CITY as an "Additional Insured" with respect to general liability. The certificate must be supplied to the satisfaction of the CITY, and must be approved by Risk Management prior to commencement of the LICENSE. All certificates of insurance shall provide at least (30) days advance written notice of any material changes, except for (10) days cancellation, in the event of non payment of premium. The City shall have the right to terminate this LICENSE AGREEMENT if OWNEWDEVELOPER fails to comply with the insurance requirements contained herein. Notice of termination must be in writing giving (10) days to the appropriate party as listed herein. The insurance policy shall be paid for by OWNER/DEVELOPER. 11. The individuals executing this AGREEMENT each represent that lie or she is fully authorized by law to bind the party for whom such individual is executing the AGREEMENT. 12. An action to enforce this AGREEMENT may be brought by either Party in law or in equity, and each party in any such litigation shall bear its own costs. The bringing of a claim shall not be deemed to be an election of remedies or the waiver of any other claim or remedy. 13. Any notice, request, demand, approval or consent given, or required to be given, under this AGREEMENT shall be in writing and shall be deemed as having been given when mailed by United States registered or certified mail (return receipt requested), postage paid, to the other parties at the addresses stated below or at the last changed address given by the party to be notified as hereinafter specified: O W'NERjDEVELOPER: 1550 CHELSEA LLC AND PARK LANE TOWERS, LLC, Florida limited liability companies c/o Iris Escarra, Esq. Page 4of10 MIA 181,168,5720 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT Greenberg Traurig 1221 Brickell Avenue, 23`a Fl Miami, Florida 33131 CITY: City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 14. If any obligation of either party pursuant to this AGREEMENT, or the application of any obligation of either party to any entity, person, or circumstance ("PARTICULAR APPLICATION") shall, to any extent be invalid or unenforceable, the OWNERDEVELOPER or the CITY, as applicable, shall have the right either to declare the entire AGREEMENT and the LICENSE terminated or to declare that the AGREEMENT and the LICENSE shall remain in full force and effect with the exception of the invalid or unenforceable term or provision or PARTICULAR APPLICATION. If the notifying party (i.e. OWNER/DEVELOPER or the CITY, as applicable) elects for the AGREEMENT to remain in effect pursuant to the provisions of this paragraph, then the remainder of this AGREEMENT, or the application of such term or provision to any entity, person, or circumstance other than the PARTICULAR APPLICATION, shall not be affected thereby, and each term and provision of this AGREEMENT shall be otherwise valid and enforceable to the fullest extent permitted by law. 15. It is expressly understood and agreed by the PARTIES that this AGREEMENT shall be a covenant running with the title to the LICENSED PROPERTY and, additionally, shall be binding upon the CITY and the OWNERDEVELOPER, and also upon their heirs, successors -in -interest, and assigns, and any conveyance or other instrument affecting the title to the aforesaid LICENSED PROPERTY shall be subject to the terms of this AGREEMENT. 16. This AGREEMENT constitutes the entire AGREEMENT between the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, both oral and written, between the parties with respect thereto. 17. This AGREEMENT shall be construed in accordance with, and governed by, the laws of the State of Florida. Venue for all actions under this AGREEMENT shall be in Miami - Dade County, Florida. 18. OW-NERDEVELOPER represents and warrants that there shall be no unlawful discrimination as provided by federal, state or local law, in connection with its performance under this AGREEMENT. 19. Preparation of this AGREEMENT has been a joint effort of the parties and the resulting document shall not, solely as a matter of interpretation or judicial construction, be construed more severely against one of the parties more than the other. 20. This AGREEMENT may not be assigned, transferred, sold, pledged or encumbered by the OWNER/DEVELOPER without agreement by the CITY. Page 5of10 MIA 181,168,572v I THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOC U LATENT Page 6 of 10 MIA 181,168,572x1 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF T14IS DOCUMENT Signed, Sealed and Delivered in the OWNER/DEVELOPER Presence of: PARK LANE TOWERS, liability company Print Name: Address: Print Name: Address: STATE OF FLORIDA ) SS COUNTY OF MIAMI-DADE By: _ Name: Title: a Florida limited The foregoing instnament was acknowledged before me this day of 2010, by ,as the of PARK LANE TOWERS, LLC, a Florida limited liability company, on behalf of such company; such person ( ) is personally known to me or (__) presented as identification. NOTARY PUBLIC Print Name: Commission No.: Commission Expires: [SEAL] Page 7 of I0 MIN 181,168,572x1 STATE OF FLORIDA THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT Approved as to Legal Form: Julie O. Bru, City Attorney Approved as to Insurance Requirements: Lee Ann Brelun, Risk Manager Page 8of10 MIA 181,168,572x1 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT Signed, Sealed and Delivered in the CITY OF MIAM1 Presence of: B y: Print Narne: Address: Print Name: Address: STATE OF FLORIDA ) ) SS COUNTY OF MIAMI -DADS ) Carlos Migoya, City Manager The foregoing instrument was acknowledged before me this day of , 2010, by Carlos Migoya, the City Manager of Miami, on behalf of such City; such person ( ) is personally known to me or ( ) presented as identification. NOTARY PUBLIC STATE OF FLORIDA Print Name: Commission No..- Commission o.:Commission Expires: [SEAL] Page 9of10 MIA 181,168, 5720 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT EXHIBIT "A" Park Lane Towers Site -' IUSP Lots 1 through 5, in Block 3 of BEVERLY TERRACE, according to the Plat thereof, as recorded in Plat Book 11, at Page 47, AND Lots 2 through 5, and that part of Lot 3 lying East of Biscayne Boulevard, in Block 2 of ELNVOOD COURT, according to the Plat thereof, as recorded in Plat Book 9 at Page 181, all of the Public Records of Miami -Dade County, Florida. 1550 Chelsea Site - IN USP LEGAL DESCRiPTSON: Lott 0 Ihrowo 4 and Lhai pertlon of Lot 10 1)tn Mket of Waco" 50U*rac4, M#odtd Fioi at Nelson Villers SalbdNWon. atcordinq to th! Ptat tharool,as mcmt4d III Piot Soak of Page 81, pvWic R8=rdri of uiami—Dade County, Ronda. Arid Lott 23 through 2$ cad that portkxi of Lok TI lying Rest of S+sceyn+ flaulr5 A hcoyne Pa."k Addition, ar;;ardi%q to the Piat t1woof os+ reoorded in Plat Book 2 at Pole 24, bd1h Of the R'uNlc Recxft of Warlm —Dodo Camly, Fiori l% less the Mor1h 12-50 feet iherocf. THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT EXIMIT "B" Park Lane Towers Site - Passu e Pa>i-k Site Lots I through S, in Block 3 of BMRLY TERRACE, dc^ording to the Plat thereof, as rmorded in Plat Book. 11, at Page 47, ARID Lots 2 through 5, and that part of Lot I lying Fast of Biscayne Boulevard, in Block 2 of ELWOOD COURT, according to the Plat thereof, as recorded in Plat BDok 9 at Page I81, all of the Public Rccords of Miami -Dade County, Florida. THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL BACKUP ORIGINAL CAN BE SEEN AT END OF THIS DOCUMENT EXHIBIT "D" PARK IMPROVEMENTS The following improvements are a minimum of what shall be designed and submitted for approval to the District Commissioner and the Parks Director, prior to construction: Six (6) Benches Walkways Native species landscaping Irrigation Lighting 6. Minimum of twenty (20) trees to be installed with a minimum of 2 inch diameter and 12 feet in height pursuant to Article 8. 1, Tree Protection in Zoning Ordinance 11000. Page 10 of 10 MIA 181,168,572v1 This document prepared by and after recordation return to: Escarra, Esq. berg Trau.9 122 ricket] Avenue 22"c F r Miami, '3131 SUBSTITUTED LICENSE AGREEMENT THIS L NSE AGREEMENT, ("AGREEMENT"), is made and entered into this day of APRIL 0 (the "Effective Date") by and between PARKLANE TOWERS, LLC, a Florida limited liabi company, its successors, heirs and assigns ("OWNIER/DEVELOPER"), and the CITY OF M I, FLORIDA, a municipal corporation of the State of Florida, in the County of Miami -Dade "CITY") the OWNER/DEVELOPER and the CITY are sometimes collectively refereed to her after as the "PARTIES"): RECITALS WHEREAS, OWNER/DEVXOPER is the owner of the two real properties described in Composite Exhibit A attached hereto Nd incorporated herein by reference ("PROJECT SITES"); and WHEREAS, the PROJECT SITES eXh obtained a Major Use Special Permit approval, Park Lane Towers by City of Miami Resolutio\the R-05-0349 and 1550 Chelsea by City of Miami Resolution R-06-0190, as same maified from time to time (collectively, "RESOLUTIONS"), which authorizes certainents to occur on the PROJECT SITES, said developments being hereinafter referred toROJECTS"; and WHEREAS,the CITY desires to use a the Park LTV Towers site located at 345 NE 32' Street, Miami, Florida for passive park as depicted in ExNb� "B" ("LICENSED PROPERTY") ; and WHEREAS, OWNER/DEVELOPER desires certain co eats and assurances from the CITY as to OWNER/DEVELOPER'S rights to develop and use thNFROJECTS SITES; NOW THEREFORE, in consideration of the premises and Nmutual covenants, conditions and agreements contained herein, the OWNER/DEVELOPER aV CITY agree as follows: The Recitals set forth above are true and correct and are incorporApd. herein by reference. 2. OWNER/DEVELOPER agrees that the CITY shall have an exclusive li se to use the LICENSED PROPERTY for the exclusive purpose a passive park until such timethe PARTIES agree to terminate this AGREEMENT. The use shall begin within fifteen (15) 7s of the completion of the park improvements ("LICENSE"). Such IMPROVEMENTS, a. MIA 181,168, 572v1 SUBSTITUTED attached herein as Exhibit "D," shall be completed no later than Six (6) months from the ffective Date of this Agreement. The term of the LICENSE may be extended with agreement o e PARTIES. The term "LICENSE TERM," as used in this AGREEMENT, shall mean the LI NSE TERM which shall continue on an annual basis until such time as the AGREEMENT is to mated.. OWNER/DEVELOPER shall have the right, upon giving not less than one hundr d twenty (120) days prior written notice to the CITY, to terminate the LICENSE. The CI hall have the right, upon giving not less than one hundred and twenty (120) days prior writte otice to the OWNER/DEVELOPER, to terminate the LICENSE at any time. 3. \0rdinanc-es, shall honor the OWNER/DEVELOPER's rights to develop the PROJECTS, Powers and 1550 Chelsea, in accordance with applicable laws and as approved by RNumbers R-05-0349 and R-06-0190. The ONV-NER/DEVELOPER shall have a stof of its two present IVfUSP approvals, Park Lane Towers and 1550 Chelsea, as maed, during the term of this LICENSE therefore during the effective dates of this LIZ the MUSPs and any amendments thereto, shall not accrue time or expire. This not effect the MUSPs rights authorized by the City of Miami Zoning Code os, as ended. Any MUSPs extensions permitted at the time of the execution of this AGREEMEN would be applicable at the termination of the LICENSE TERM, including two (2) additiona enty-four (24) month extensions permitted under Zoning Ordinance 11000 and Miami 21. 4. All rights and privileges der this AGREEMENT shall be honored from the EFFECTIVE DATE to when (i) the LICE TERM expires or the LICENSE AGREEMENT is terminated in accordance with the terms this AGREEMENT or (ii) the date the CITY returns complete possession and control f the LICENSED PROPERTY to the OWNER/DEVELOPER. Upon termination or piration of the LICENSE TERM, the PARTIES shall execute, in a recordable form, a No e of Termination of this AGREEMENT, which shall be recorded in the Public Records of i -Dade County, Florida. The CITY agrees that, unless requested by the OWNER/DEVELO R, during the time of the LICENSE TERM pursuant to this AGREEMENT: (a) the CITY s 11 take no action, legislatively or otherwise, to modify the PROJECTS and (b) no modificati of City Zoning Ordinance No. 11000, or modification or adoption of any other ordinance or gulation, that shall negatively impact the ability of the OWNER/DEVELOPER to develop the OJECTS, except as would be approved under a substantial modification submitted by OWNE EVELOPER. 5. During the LICENSE TERM and so long as the CITY h possession or control of the LICENSED PROPERTY, the OWNER/DEVELOPER shall mat ain the LICENSED PROPERTY in a clean, safe, and orderly condition and it shall not allow nuisance to occur upon the LICENSED PROPERTY. The OWNER/DEVELOPER shall be r onsible for the payment of all reasonable costs of maintenance and all reasonable costs perta. to the use of the LICENSED PROPERTY, including, but not limited to, the cost of securi electricity, water, sewer, and any other utilities. Notwithstanding any other provisi of this AGREEMENT, the OWNER/DEVELOPER shall retain the right to enter and in ect the LICENSED PROPERTY at any time to: (a) determine that this AGREEMENT i eing complied with by the CITY; and (b) to conduct any surveys, tests and sampling (includin the taking of ground core samples) related to future development on the LICENSED PROPER (cumulatively "SURVEYING AND TESTING"), without, however, interfering, obstructing, o Page 2 of 10 MIA 181,168, 572v1 SUBSTITUTED minis hing the CITY's use of the LICENSED PROPERTY. The OWNER/DEVELOPER will p vide the CITY with not less than 48 hours written notice of its intent to conduct S\ha EYING AND TESTING on the LICENSED PROPERTY and after completing the SYING AND TESTING will restore said property to the condition it was in prior to the SING AND TESTING. . Any improvements to the LICENSED PROPERTY during the LICENSE TERM sat th ole cost and expense of the OWNER'DEVELOPER as set forth in Exlvbit "D" athere and incorporated herein, by reference. The OWNER/DEVELOPER's iments to e LICENSED PROPERTY shall be limited to the installation of furniture, fos, lighting, and landscaping (collectively, "IMPROVEMENTS"), uriless otherwise ain writing b the OWNER/DEVELOPER. Upon the expiration, or earlier termination oICENSE TE and all IMPROVEMENTS on the property shall remain the sole prof the ONLINE EVELOPER and the CITY shall have no claim of right to such MEMENTS. 7_ OWNER/DEV OPER shall be responsible for the payment of ad valorem, property taxes, sales, use or f other taxes or governmental levies on the LICENSED PROPERTY and the PROD T PROPERTY during the LICENSE TERM. OWNEWDEVELOPER retains the 'ght to challenge the amount of any tax assessment imposed upon the LICENSED PROP TY. The sole and exclusive use of the LICENCED PROPERTY durilig the LICENSE TE all be for a passive public park. 8. The City agrees to indemnify d hold harmless the OWNEWDEVELOPER to the extent and within the limitations of Section 68.28 Fla. Stat., and subject to the provisions of that Statute, whereby the City shall not be h d liable to pay a bodily injury or property damage claim or judgment by anyone person that e eeds 5100;000, or any claim or judgments or portions thereof, that, when totaled with all other currences, exceeds 5200,000, from any bodily and all personal injury or property damage claim liabilities, losses and causes of action arising from the same claim which may arise solely as a sult of the negligence of the City in connection with its rights and obligations under this AG ENT. The City retains all rights and sovereign immunity defenses available to it under Se *on 768.28, Fla. Stat., and this provision does not alter the city's sovereign immunity nor ex nd the City's liability beyond that established in Section 768.28, FIa. Stat. Nothing herein shal e deemed to indemnify the OWNER/DEVELOPER or any third party from any liability o claim arising out of the negligent performance or failure of performance of the OWN EVELOPER or its employees, agents, servants, partners, principals or subcontractors; or a unrelated third party. The OWNER/DEVELOPER expressly understands and agrees that an ' surance protection required by this AGREEMENT or otherwise provided by the CITY shall no roaden or enlarge the duty to indeimufy beyond the express limitations of this section, nor do it apply to any other damages, claims, liabilities, losses and causes of action, except as herein p vided. 9. The OWNER/DEVELOPER does hereby agree to indemnify and ho harmless the City, its officials, employees; agents and assigns from and .against any and a claims, damages, losses, and causes of action, resulting in bodily injury and/or property damag claim, arising solely out of the negligence of the OWNER/DEVELOPER, its employees, agen and Page 3 of 10 MIA 181,168,572v1 SUBSTITUTED any contractors hired by the OWNER/DEVELOPER, directly in connection to the PROPERTY or its duties as the OWNERS and as the DEVELOPER of the PROPERTY. 10. The OWNER/DEVELOPER agrees to carry and keep in full force and effect at all es during the LICENSE TERM, a commercial general liability policy with limits of at least 1000,000 (2 million) per occurrence, $4,000,000 (4 million) total policy aggregate affordin coverage for bodily injury and property damage, including death in connection to this agreemen well as, but not limited to, all claims contemplated in sections `8' and `9' contemplate supra.. The certificate of insurance must include and protect against premises and operation liability, contingent and contractual exposures, products and completed operations and ersonal injury and advertising liability. In the event of a loss, the OWNER/DEVEL ER shall be responsible for payment of any and all applicable policy deductibles associate with the loss .. The coverage must be placed with an insurance carrier authorized to do busin s in the State of Florida. The insurance carrier issuing the insurance policy must be rated no ss than (A-) as to management, and no less than class (V) as to its financial strength by the 1 edition of Best Insurance Guide, or its equivalent, and such policy or certificate of insuran must be approved by Risk Management. The OWNER/DEVELOPER shall ovide a certificate of insurance naming the CITY as an "Additional Insured" with respec o general liability. The certificate must be supplied to the satisfaction of the CITY, and must approved by Risk Management prior to commencement of the LICENSE. All certificates of i rance shall provide at least (30) days advance written notice of any material changes, except (10) days cancellation, in the event of non payment of premium. The City shall have the n t to terminate this LICENSE AGREEMENT if OWNER/DEVELOPER fails to comply w the insurance requirements contained herein. Notice of termination must be in writing give (10) days to the appropriate party as listed herein. The insurance policy shall be paid for by ER/DEVELOPER. 11. The individuals executing tlus AGF-E3VNT each represent that he or she is fully authorized by law to bind the party for wh such individual is executing the AGREEMENT. 12. An action to enforce this AGREEMENT may b rought by either Party in law or in equity, and each party in any such litigation shall bear its ow osts. The bringing of a claim shall not be deemed to be an election of remedies or the waiver of ak other claim or remedy. 13. Any notice, request, demand, approval or consent given, r required to be given, under this AGREEMENT shall be in writing and shall be deemed as h ing been given when mailed by United States registered or certified mail (return receipt reques ), postage paid, to the other parties at the addresses stated below or at the last changed addressen by the party to be notified as hereinafter specified: OWNER/DEVELOPER: 1550 CHELSEA LLC AND PARK TOWERS, LLC, Florida limited liability cc c/o Iris Escarra, Esq. Page 4 of 10 MIA 181,168,5720 SUBSTITUTED Greenberg Traurig 1221 Brickell Avenue, 23`a Fl Miami, Florida 33131 City Manager City of Miami 3500 Pan American Dnve Miami, Florida 33133 14. any obligation of either party pursuant to this AGREEMENT, or the application of any obligati of either party to any entity, person, or circumstance ("PARTICULAR APPLICATION") all, to any extent be invalid or unenforceable, the OWNERIDEVELOPER or the CITY, as app ble, shall have the right either to declare the entire AGREEMENT and the LICENSE terminated to declare that the AGREEMENT and the LICENSE shall remain in full force and effect with e exception of the invalid or unenforceable term or provision or PARTICULAR APPLICA ON. If the notifying party (i.e. OWNER/DEVELOPER or the CITY, as applicable) elects the AGREEMENT to remain in effect pursuant to the provisions of this paragraph, then the re inder of this AGREEMENT, or the application of such term or provision to any entity, person, circumstance other than the PARTICULAR APPLICATION, shall not be affected thereby, an each term and provision of this AGREEMENT shall be otherwise valid and enforceable to th fullest extent permitted by law. 15. It is expressly understoo nd agreed by the PARTIES that this AGREEMENT shall be a covenant running with the title t the LICENSED PROPERTY and, additionally, shall be binding upon the CITY and the O ER/DEVELOPER, and also upon their heirs, successors -in -interest, and assigns, and any co veyance or other instrument affecting the title to the aforesaid LICENSED PROPERTY shall be s 'ect to the terms of this AGREEMENT. 16. This AGREEMENT constitutes the ztire AGREEMENT between the parties with respect to the subject matter hereof and supersed all prior agreements, understandings and arrangements, both oral and written, between the parties 'th respect thereto. 17. This AGREEMENT shall be construed in ac rdance with, and governed by, the laws of the State of Florida. Venue for all actions under this GREEMENT shall be in Miami - Dade County, Florida. 18. OWNER/DEVELOPER represents and wai7ants th there shall be no urdawful discrimination as provided by federal, state or local law, in cone 'on with its performance under this AGREEMENT. 19. Preparation of this AGREEMENT has been a joint effort oNthe parties and the resulting document shall not, solely as a matter of interpretation or judice construction, be construed more severely against one of the parties more than the other. 20. This AGREEMENT may not be assigned, transferred, sold pledged or encumbered by the OWNER/DEVELOPER without agreement by the CITY. Page 5of10 MIA 161,168, 5720 SUBSTITUTED SUBSTITUTED Sealed and Delivered in the of. Print Nam Address: Print Name: Address: STATE OF FLORIDA ) ) SS COU'N'TY OF MIAMI-DADE ) OWNERIDEVELOPER PARK LANE TOWERS, a Florida limited liability company By: _ Name: Title: The foregoing instrument was acknowledg before me this day of 2010, by , as the of PARK LANE TOWERS, LL a Florida limited liability company, on behalf of such company; such person ( ) is p sonally known to me or �) presented as identification. NOTARY PVL Print Name: Commission No.. Commission Exp: [SEAL] Page 7 of 10 MIA 181,168,5720 STATE OF FLORIDA SUBSTITUTED as to Legal Forrn: Julie. \Bru,City Attomey Apprto Insurance Requirements: Lee Ann Bcchm,Xiisk Manager Page 8of10 MIA 181,168,5720 i SUBSTITUTED Sided, Sealed and Delivered in the CITY OF MIAMI Pres ce of: In Print Nal Address: Print Name: Address: STATE OF FLORIDA COUNTY OF MLAMI-DARE ) Carlos Migoya, City Manager The foregoing instrument was acknowle (d before me this day of 2010, by Carlos Migoya, the Cit anager of Miami, on behalf of such City; such person () is personally known to me or '%_) presented as identification. NOTARY\Expi TATE OF FLORIDA Print Name Commissio Commissio [SEAL) Page 90f10 MIA 181,168,5720 SUBSTITUTED EXHIBIT "D" PARK IMPROVEMENTS The follo'ing improvements are a minimum of what shall be designed and submitted for approval to e District Commissioner and the Parks Director, prior to construction: (6) Benches Wal ays Native s cies landscaping 4. Irrigation Lighting 6. Minimum of tweet 20) trees to be installed with a minimum of 2 inch diameter and 12 feet in height pursuant to ArtNe 8.1; Tree Protection in Zoning Ordinance i 1000. Page 10 of 10 MIA 181,168, 5720