HomeMy WebLinkAboutExhibit 1DONATION AND MAINTENANCE AGREEMENT
BETWEEN CITY OF MIAMI
AND
CITY NATIONAL BANK OF FLORIDA
A NATIONAL BANKING ASSOCIATION
AS TRUSTEE UNDER LAND TRUST NO. 2401-1149-00
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TABLE OF CONTENTS
1. INCORPORATION OF RECITALS 1
2. DONATION OF IMPROVEMENTS 2
3. TERM 2
4. REVOCATION OF THIS AGREEMENT 2
5. RIGHT OF ENTRY AND AUTHORIZATION TO PROCEED 3
6. CONDITION OF THE PROPERTY 3
7. MAINTENANCE AND REPAIR 3
8. UTILITIES. 3
9. MECHANICS LIENS 3
10. ACCESS TO THE IMPROVEMENTS 4
11. CONSENT TO PERMITS 4
12. COMPLIANCE WITH LAWS, 4
13. INDEMNITY, INSURANCE AND RELEASES 5
14. INSURANCE 5
15. DESTRUCTION 6
16. SAFETY 6
17. AMERICAN WITH DISABILITIES ACT 6
18. ASSIGNMENT 6
19. NO LIABILITY 7
20. TAXES AND FEES 7
21, NOTICES 8
22. DEFAULT 8
23. ADVERTISING 9
24. OWNERSHIP OF IMPROVEMENTS 9
25. SURRENDER OF PREMISES 9
26. SEVERABILITY AND SAVINGS CLAUSE 10
27. NONDISCRIMINATION 10
28. AFFIRMATIVE ACTION 10
29. WAIVER OF JURY TRIAL 10
30. NON -WAIVER OF DEFAULT 11
31. AMENDMENTS AND MODIFICATIONS 11
32. CAPTIONS 11
33. INTERPRETATION 11
34. ENTIRE AGREEMENT 11
DONATION AND MAINTENANCE AGREEMENT
This Donation and Maintenance Agreement (the "Agreement") is made this _ day of
2005, between the City of Miami (the "City") a municipal corporation of the State of
Florida and City National Bank of Florida, a national banking association (the "Trustee"), as
trustee under Land Trust No, 2401-1149-00 (alternatively, the "Trust" or the "Owner").
WHEREAS, the Owner is the owner of that certain upland property located at 315, 325
and 335 South Biscayne Boulevard, Miami, Florida (the "Property"); and
WHEREAS, TRG-OMC, Ltd., a Florida limited partnership (a "Beneficiary") is a
beneficiary under the Trust; and
WHEREAS, the Beneficiary is responsible for, among other things, developing the
common area portions of the mixed -use residential and commercial development (the
"Development") on the Property; and
WHEREAS, the City is the owner of that submerged land located south of and adjacent to
the Property, as more particularly described in Exhibit "A" attached hereto and made a part hereof
(the "Premises"); and
WHEREAS, the Major Use Special Permit (the "MUSP") approved for the Development
included a condition requiring the construction and maintenance of a water taxi dock (the
"Improvements") on the Premises; and
WHEREAS, the City agreed to assist the Owner with the filing of all required permits and
be a co -applicant, if required; and
WHEREAS, the Owner agrees to cause the Beneficiary to construct the Improvements and
to donate the Improvements to the City upon completion of construction.
NOW THEREFORE, for and in consideration of one ($1.00) dollar and other valuable
consideration contained herein, the receipt and sufficiency of which are hereby acknowledged,
the City and the Owner agree as follows:
1. INCORPORATION OF RECITALS
The recital and findings set forth above are hereby adopted by reference thereto and
incorporated herein as if fully set forth in this Agreement.
2. DONATION OF IMPROVEMENTS
In accordance with the terms and conditions of the MUSP and this Agreement, the Owner
hereby agrees to cause the Beneficiary to construct the Improvements on the Premises in
accordance with the plan set forth on Exhibit "B" attached hereto and made a part hereof with the
intention of it being a gift to the City, the estimated value of which is $125,000. The Beneficiary
shall complete construction of the Improvements, as evidenced by the issuance of a Notice of
Completion, no later than six (6) months from the Effective Date; provided, however, that the
Beneficiary's obligation to complete said construction shall be extended for a period of time
equal to the period of time that the Beneficiary cannot fulfill such obligations by reason of delays
beyond its control, including without limitation, acts of God, unusually adverse weather
conditions, war, insurrection or labor strikes, or any other event commonly included within the
definition of "force majeure",
3. TERM
The term of this Agreement shall be for a period of twenty-five (25) years (the "First
Period") which term shall commence upon full execution of this Agreement and the receipt by
the City of the insurance required under Paragraph 14 below (the "Effective Date"). This
Agreement shall automatically renew for additional twenty-five (25) year periods (the "Renewal
Periods") unless the City Manager delivers written notice to the Owner six months prior to the
expiration of the First Period or any such Renewal Period that the renewal will not be exercised.
The First Period and the Renewal Periods. shall be referred to collectively as the " Term".
- Notwithstanding -the -above, in theeventthe City or -a -third party -is not_operating a water
taxi from the Improvements at the expiration of the First Period, this Agreement will
automatically terminate upon notice from the Owner to the City. Upon such termination, the
City, acting by and through its City Manager, shall have the option of (i) requesting the Owner to
remove the Improvements, at its sole cost and expense, or (ii) assuming the obligations for
maintenance and repair of the Improvements. Upon termination of this Agreement pursuant to
this section, the Owner and the City shall be released from any further obligations hereunder,
except that such release shall not apply to any sums then accrued or due, or to the Owner's
obligations under the Section 25 of this Agreement or to any obligation otherwise surviving the
termination of this Agreement.
4. REVOCATION OF THIS AGREEMENT
This Agreement is revocable at will by the City Manager and without the consent of the
Owner; provided that in the event of a revocation of this Agreement by the City Manager, the
Owner shall nonetheless be deemed to have complied with all requirements relating to the
Improvements as set forth in the MUSP. In the event of such revocation, the Owner shall remain
liable for compliance with the terms and conditions of this Agreement through and including the
date this Agreement is terminated and shall be automatically released from all further obligations
hereunder following the date of termination except that such release shall not apply to any sums
then accrued or due, or to the Owner's obligations under the Section 25 of this Agreement or to
any obligation otherwise surviving the termination of this Agreement,
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5. RIGHT OF ENTRY AND AUTHORIZATION TO PROCEED
The City grants to the Owner, its employees, agents, contractors and subcontractors the
right to enter upon the Premises during the Term for purposes of constructing, maintaining and
repairing the Improvements.
6. CONDITION OF THE PROPERTY
The Owner accepts the Premises "as is", in its present condition and state of repair and
without any representation by or on behalf of City, and agrees that City shall, under no
circumstances, be liable for any latent, patent or other defects in the Premises. The Owner, at its
sole cost, shall maintain the Premises in good order and repair at all times and in an attractive,
clean, safe and sanitary condition and shall suffer no waste or injury thereto. Owner shall be
responsible for all repairs to the Premises required or caused by Owner's use of part thereof.
Owner agrees to make all changes necessary to the Premises at Owner's sole cost and
expense in order to comply with all City, County and State code requirements for Owner's
construction of the Improvements.
7. MAINTENANCE AND REPAIR
The Owner shall throughout the Term, at the Owner's sole cost and expense, maintain in
good, clean and orderly condition and repair the Premises and the Improvements. The Owner
shall, at Owner's sole cost and expense, promptly make to the Improvements all necessary
repairs, interior and exterior, structural and nonstructural, whether made necessary or caused by
fire or other casualty, or by ordinary wear and tear, All repairs shall be of good quality sufficient
for the proper maintenance and operation of the Improvements and shall be constructed and
installed in compliance with all legal requirements of all governmental authorities having
jurisdiction. The Owner shall not permit the accumulation of waste or refuse matter, nor permit
anything to be done upon the Premises or the Improvements which would invalidate or prevent
the procurement of all insurance policies which may at any time be required pursuant to the
provisions of Paragraph 14. Nothing contained in this Agreement shall impose on the City the
obligation to make any repairs or expend any monies for the maintenance of the Premises, or the
maintenance, renewal, replacement or repair of the Improvements.
8. UTILITIES.
Owner shall provide and pay for the lighting required to operate the Improvements and all
other utilities that may be legally required in order to construct and maintain the Improvements
and shall pay all costs for the installation of any lines and equipment necessary in connection
therewith.
9. MECHANICS LIENS
Owner, at its expense and with due diligence and dispatch, shall secure the cancellation or
discharge of or bond off same in the manner permitted by law, all notices of violations arising
from or otherwise in connection with the Improvements which shall be issued by any public
authority having or asserting jurisdiction. Owner shall promptly pay its contractors and
materialmen for all work and labor done at Owner's request. Should any such lien be asserted or
filed, regardless of the validity of said liens or claims, Owner shall bond against or discharge the
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same within fifteen (15) calendar days of Owner's receipt of notice of the filing of said
encumbrance. In the event Owner fails to remove or bond against said lien by paying the full
amount claimed, Owner shall pay the City upon demand any amount paid out by City, including
City's costs, expenses and reasonable attorneys' fees. Owner further agrees to hold City harmless
from, and to indemnify the City against, any and all claims, demands and expenses, including
reasonable attorney's fees, by reason of any claims of any contractor, subcontractor, materialman,
laborer or any other third person with whom Owner has contracted or otherwise is found liable
for, in respect to the Premises. Nothing contained in this Agreement shall be deemed, construed
or interpreted to imply any consent or agreement on the part of City to subject the City's interest
or estate to any liability under any mechanic's or other lien asserted by any contractor,
subcontractor, materialman or supplier thereof against any part of the Premises or any of the
improvements thereon and each such contract shall provide that the contractor must insert a
statement in any subcontract or purchase order that the contractor's contract so provides for
waiver of lien and that the subcontractor, materialman and supplier agree to be bound by such
provision.
10. ACCESS TO THE IMPROVEMENTS
Owner hereby grants and shall execute and record in the Public Records of Miami -Dade County,
Florida, a perpetual non-exclusive pedestrian easement to the public for the purpose of providing
access to the Improvements. Such easement shall be provided in such a manner so as to provide
direct access from the adjacent public right-of-way without the necessity of going through the
Owner's buildings to obtain such access. The easement shall be subject to the review and
approval by the City Attorney and shall be satisfactory to the City as to form and substance. The
Improvements shall at all times be for use in connection with a water taxi(s) service, at no cost,
on a first come, first served basis and neither the Owner nor its successors or assigns shall enter
into any dockage agreement for this space.
11. CONSENT TO PERMITS
Acceptance of this gift by the City shall constitute consent of the submerged landowner,
and a copy of this letter shall be used as such consent for all permit applications pertaining to the
Improvements as depicted in the sketches in Exhibit B. The City agrees to cooperate with the
Owner and the Beneficiary in connection with the fling of all required permits and agrees to join
in any applications if necessary.
12. COMPLIANCE WITH LAWS.
The Owner accepts this Agreement and hereby acknowledges that Owner's strict
compliance with all applicable federal, state and local laws, ordinances and regulations is a
condition of this Agreement, and the Owner shall comply therewith as the same presently exist
and as they may be amended, replaced, supplemented or superseded from time to time. The
foregoing shall not impose any of the costs or expenses of the Owner upon the City. This
Agreement shall be governed by and construed in accordance with the laws of the State of
Florida regardless of any conflict of law or other rules, which would require the application of
the laws of another jurisdiction. Venue for any legal proceeding shall be in Miami -Dade County.
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13. INDEMNITY, INSURANCE AND RELEASES
Owner shall indemnify, defend and hold harmless the City and its officials, employees
and agents (collectively referred to as "Indemnitees") and each of them from and against all loss,
costs, penalties, fines, damages, claims, expenses (including reasonable attorney's fees) or
liabilities (collectively referred to as "Liabilities") including Liabilities for any injury to or death
of any person or damage to or destruction or loss of any property arising out of, resulting from, or
in connection with (i) the performance or non-performance of the services required to make the
Improvements, which is or is alleged to be directly or indirectly caused, in whole or in part, by
any act, omission, default or negligence (whether active or passive) of Owner, (ii) the failure of
Owner to provide the Improvements, or (iii) the failure of Owner to conform to statutes,
ordinances, or other regulations or requirements of any governmental authority, federal or state,
in connection with the performance of the Agreement, except in the event the Liabilities relate to
or are caused by the willful misconduct or gross negligence of the Indemnitees. Owner expressly
agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all
liabilities which may be asserted by an employee or former employee of Owner, or any of its
subcontractors, as provided above, for which Owner's liability to such employee or former
employee would otherwise be limited to payments under state Workers' Compensation or similar
laws.
The indemnity provision set forth in this Paragraph 13 shall commence on the Effective
Date and shall survive termination of this Agreement.
14, INSURANCE
A. Prior to Owner, its agents, employees, contractors and subcontractors, or anyone
directly or indirectly employed by any of them entering upon the Premises for purposes of
making the Improvements, the Owner shall furnish to the City Manager the policy or policies of
insurance or certificates of insurance naming the City as an additional insured with the following
coverage: $1,000,000 per occurrence and $2,000,000 in aggregate protecting the City against all
claims for personal injury, property damage, and regulatory actions by governmental agencies
arising out of or related to the activities undertaken by Owner upon the Premises. The insurance
required hereunder shall be effective until the expiration of the Term or the earlier termination of
this Agreement.
B. Owner shall purchase and maintain, at its own cost and expense, a Policy of
Liability Insurance with the following coverage: $1,000,000 per occurrence and $2,000,000 in
the aggregate and shall designate the City as an additional insured on said Policy. The Owner
shall provide the City's Risk Management Director with a certificate of insurance on an annual
basis and make available the policy of insurance upon request.
C. Owner hereby waives any and all claims against the City for personal injury or
property damage, sustained by the Owner, its agents, employees, consultants, contractors and
subcontractors upon the Premises, or in connection with the performance of the Improvements
and releases the City from any claims in connection therewith, other than those claims arising
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from or relating to the willful misconduct or negligence of the City, its employees, agents or
contractors. Similarly, Owner hereby waives any and all indemnity claims against the City for
third party regulatory actions by governmental agencies against the Owner in connection with the
performance of the Improvements other than those claims arising from or relating to the willful
misconduct or negligence of the City, its employees, agents or contractors.
15. DESTRUCTION
If the Premises shall be damaged by fire, the elements, accident or other casualty (any of
such causes being referred to herein as a "Casualty"), but the Premises shall not be damaged in
excess of fifty percent (50%) of the replacement value of the Improvements, the Owner shall
promptly cause such damage to be repaired to substantially the condition the Premises was prior
to such damage occurring, at its sole cost and expense.
In the event the Premises is damaged during the Term and the damage exceeds fifty
percent (50%) of the replacement value of the Improvements, then, the City, acting by and
through its City Manager, may either elect (i) to terminate this Agreement by giving notice of
such election within ninety (90) days after the occurrence of such Casualty; or (ii) to repair the
Improvements, at its sole cost and expense. If such notice of termination is given, the rights and
obligations of the Parties shall cease as of the date specified in such notice.
Upon termination of this Agreement pursuant to this section, the Owner and the City shall
be released from any further obligations hereunder, except that such release shall not apply to any
sums then accrued or due, or to the Owner's obligations under the Section 25 of this Agreement
or to any obligation otherwise surviving the termination of this Agreement.
16. SAFETY
Owner will allow City inspectors, agents or representatives the ability to monitor its
compliance with safety precautions as required by federal, state or local laws, rules, regulations
and ordinances. By performing these inspections the City, its agents, or representatives are not
assuming any liability by virtue of these laws, rules, regulations, and ordinances. Owner shall
have no recourse against the City, its agents, or representatives from the occurrence, non-
occurrence, or result of such inspection(s). Upon occupancy of the Premises, Owner shall contact
the City's Risk Management Department to schedule the inspection(s).
17. AMERICAN WITH DISABILITIES ACT
Owner shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act ("ADA") in the course of utilizing the Premises including Titles I and II of the
ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations,
guidelines and standards. Additionally, Owner shall take affirmative steps to ensure
nondiscrimination in employment of disabled persons.
18. ASSIGNMENT
Owner shall be permitted to assign this Agreement to the Beneficiary, which shall
specifically assume all of Owner's obligations hereunder, at which time the Owner will be
released from its obligations hereunder and the Beneficiary shall become solely responsible to the
City for compliance with each and every term contained herein and all benefits conferred hereby
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shall inure solely to the Beneficiary such that any rights and/or obligations owed by or to Owner
shall become a right or obligation of the Beneficiary. Further, upon formation of a condominium
association and/or master association at the Development (the "Association") and completion of
the Improvements, the Beneficiary or the Owner, as the case may be, may assign its rights and
obligations under this Agreement to the Association, which shall specifically assume all of the
Beneficiary's or Owner's obligations hereunder, at which time the Beneficiary or the Owner, as
the case may be, will be released from its obligations hereunder and the Association shall become
solely responsible to the City for compliance with each and every term contained herein and all
benefits conferred hereby shall inure solely to the Association such that any rights and/or
obligations owed by or to the Beneficiary or the Owner shall become a right or obligation of the
Association.
Except as specifically provided above, the Owner may not assign or transfer this
Agreement or any portion of any privilege of occupancy and/or use granted by this Agreement.
19. NO LIABILITY
In no event shall the City be liable or responsible for injury, loss or damage to the
property, improvements, and/or equipment belonging to or rented by Owner, its officers, agents,
employees, contractors, subcontractors, invitees or patrons occurring in or about the Premises
that may be stolen, destroyed, or in any way damaged, including, without limitation, fire, flood,
steam, electricity, gas, water, rain, vandalism or theft which may leak or flow from or into any
part of the Premises, or from the breakage, leakage, obstruction or other defects of the pipes,
wires, appliances; plumbing, -air conditioning or lighting fixtures of the Premises, or from
hurricane or any act of God or any act of negligence of any user of the facilities or occupants of
the Premises or any person whomsoever whether such damage or injury results from conditions
arising upon the Premises or from other sources, except in the event of the willful misconduct
or gross negligence of the City. Owner indemnifies the City its officers, agents and employees
from and against any and all such claims other than those claims, costs, liabilities, suits, actions,
damages or causes of action related to the willful misconduct or gross negligence of the City,
including any of its employees, agents, or officials.
20. TAXES AND FEES
Owner shall pay before any fine, penalty, interest or cost is added for nonpayment, any
and all charges, fees, taxes or assessments levied against the Premises, or against any occupancy
interest or personal property of any kind, owned by or placed in, upon or about the Premises by
Owner, including, but not limited to, ad valorem taxes, fire fees, and parking surcharges, In the
event Owner appeals a tax or fee, Owner shall immediately notify the City of its intention to
appeal said tax or fee and shall furnish and keep in effect a surety bond of a responsible and
substantial surety company reasonably acceptable to the City or other security reasonably
satisfactory to the City in an amount sufficient to pay one hundred percent (100%) of the
contested tax together with all interest, costs and expenses, including reasonable attorneys' fees,
expected to be incurred. Owner shall pay all of the said taxes, if any, lawfully assessed on such
dates before delinquency. Failure of Owner to such charges, fees, taxes or assessments when due
shall constitute a violation of this Agreement.
21. NOTICES
All notices or other communications which may be given pursuant to this Agreement
shall be in writing and shall be deemed properly served if delivered by personal service or by
certified mail addressed to City and Owner at the address indicated herein or as the same may be
changed from time to time. Such notice shall be deemed given on the day on which personally
served; or if by certified mail, on the fifth day after being posted or the date of actual receipt,
whichever is earlier:
CITY OF MIAMI
City of Miami
City Manager
3500 Pan American Drive
Miami, FL 33133
WITH A COPY TO
City of Miami
Director
Department of Economic Development
444 SW 2nd Avenue, Suite 325
Miami, FL 33130
WITH A COPY TO
City of Miami
City Attorney
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130
OWNER
c/o The Related Group of Florida
2828 Coral Way, PH Suite
Miami, FL 33145
Attention: Gary Kuhl
WITH COPY TO
Greenberg Traurig PA
1221 Brickell Avenue
Miami, FL 33131
Attention: Joel K. Goldman, Esq
22. DEFAULT
If there is a material breach by the Owner under this Agreement which is not cured within
thirty (30) days following Owner's receipt of written notice thereof from the City Manager (or
such longer period of time as may be reasonably required by Owner to cure the breach if such
breach is by its nature not reasonably susceptible of being cured within such thirty (30) days
period, and Owner has commenced and is diligently pursuing such cure), the City may, as the
City's sole and exclusive remedies (i) terminate this Agreement by providing written notice
thereof to the Owner, or (ii) cure such default at the sole cost and expense of Owner; provided,
however, that in the event Owner's default has created an emergency situation, in the reasonable
discretion of the City, such that the health and/or safety of the persons utilizing the Premises or
Improvements is in danger, the City's self-help remedy as set forth in subpart (ii) above shall be
able to be exercised within a time period of less than thirty (30) days in order to timely cure such
default. Owner shall reimburse the City for all amounts expended by the City within ten (10)
days of receipt of an invoice indicating the costs incurred by the City.
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23. ADVERTISING
Owner shall not permit any signs, decoration, or advertising matter to be placed upon the
exterior of the Premises without having first obtained the approval of the Director of the
Department of Economic Development or his/her designee, which approval may not be
unreasonably withheld or delayed. Owner must further obtain approval from all governmental
authorities having jurisdiction, and must comply with all applicable requirements set forth in the
City of Miami Code and Zoning Ordinance. Upon the cancellation of this Agreement, Owner
shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing
permitted hereunder from the Premises. If any part of the Premises is in any way damaged by the
removal of such items, said damage shall be repaired by Owner at its sole cost and expense.
Should Owner fail to repair any damage caused to the Premises within thirty (30) days after
receipt of written notice from the City directing the required repairs (or such longer period of
time as may be reasonably required by Owner to cure the breach if such breach is by its nature
not reasonably susceptible of being cured within such thirty (30) days period, and Owner has
commenced and is diligently pursuing such cure), the City shall cause the Premises to be repaired
at the sole cost and expense of Owner. Owner shall pay the City the full cost of such repairs
within ten (10) days of receipt of an invoice indicating the cost of such required repairs.
24. OWNERSHIP OF IMPROVEMENTS
As of the Effective Date and throughout the Term, title to the Premises shall be vested in
City. Furthermore, title to all Improvements made in or to the Premises, whether or not by or at
the expense of Owner, -shall, unless .otherwise provided by written agreement, immediately upon
their completion become the property of the City and shall remain and be surrendered with the
Premises.
25. SURRENDER OF PREMISES
Upon the expiration, revocation or termination of this Agreement, Owner shall promptly
remove all of its personal property, and Owner shall repair any damage to the Premises caused
thereby. At the City's option, the City, acting by and through its City Manager may require
Owner, at Owner's sole cost and expense, to remove any and all Improvements from the
Premises after the expiration, revocation or termination of this Agreement. In the event Owner
fails to remove the Improvements, the City may authorize removal and may sell such forfeited
Improvements after ten (10) days written notice to the Owner. However, such remedy shall be in
addition to all other remedies available to the City under applicable laws, rules and regulations
including the right to compel removal of all Improvements, at Owner's cost and expense, and the
right to impose administrative fines.
In the event Owner fails to remove its personal property and equipment from the Premises
within the time limit set by the notice, said property shall be deemed abandoned and thereupon
shall become the sole personal property of the City. The City, at its sole discretion and without
liability, may remove and/or dispose of same as the City sees fit, all at Owner's sole cost and
expense.
In the event Owner fails to reimburse the City for such costs within ten (10) days
following Owner's receipt of notice setting forth such costs, the City shall have the right to file a
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lien upon the Property in the amount of such unpaid costs enforceable in summary proceedings
as provided by law.
26. SEVERABILITY AND SAVINGS CLAUSE
It is the express intent of the parties that this Agreement constitutes a license and not a
lease. To further this intent, the parties agree as follows: (i) if any provision of this Agreement,
or the application thereof to any circumstance, suggest that a lease, rather than a license, has been
created, then such provision shall be interpreted in the light most favorable to the creation of a
license and (ii) if any provision of this Agreement, or the application thereof to any circumstance,
is determined by a court of competent jurisdiction to have created a lease rather than a license,
then such provision shall be stricken and, to the fullest extent possible, the remaining provisions
of this Agreement shall not be affected thereby and shall continue to operate and remain in full
force and effect.
With regard to those provisions which do not affect the parties intent for this Agreement
constitute a license, should any provision, paragraph, sentence, word or phrase contained in this
Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise
unenforceable under the laws of the State of Florida or the City of Miami, such provision,
paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to
conform with such laws, or if not modifiable, then same shall be deemed severable, and in either
event, the remaining terms and provisions of this Agreement shall remain unmodified and in full
force and effect or limitation of its use.
27. NONDISCRIMINATION
Owner shall not discriminate as to race, color, religion, sex, national origin, age,
disability, or marital status in connection with its occupancy and/or use of the Premises and
improvements thereon.
28. AFFIRMATIVE ACTION
Owner shall have in place an Affirmative Action/Equal Employment Opportunity Policy
and shall institute a plan for its achievement which will require that action be taken to provide
equal opportunity in hiring and promoting for women, minorities, the disabled and veterans.
Such plan will include a set of positive measures which will be taken to insure nondiscrimination
in the work place as it relates to hiring, firing, training and promotion. In lieu of such a
policy/plan, Owner shall submit a Statement of Assurance indicating that their operation
complies with all relevant Civil Rights laws and regulations.
29. WAIVER OF JURY TRIAL
The parties hereby knowingly, irrevocably, voluntarily and intentionally waive any right
either may have to a trial by jury in respect of any action, proceeding or counterclaim based on
this Agreement, or arising out of, under or in connection with this Agreement or any amendment
or modification of this Agreement, or any other agreement executed by and between the parties
in connection with this Agreement, or any course of conduct, course. of dealing, statements
(whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a
material inducement for the City and Owner entering into the subject transaction.
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30. NON -WAIVER OF DEFAULT
Any failure by the City at any time or from time to time to enforce and require the strict
keeping and performance of any of the terms or conditions of this Agreement shall not constitute
a waiver of any such terms or conditions at any future time and shall not prevent the City from
insisting on the strict keeping and performance of such terms or conditions at any later time. No
waiver of any right hereunder shall be effective unless in writing and signed by the City.
31. AMENDMENTS AND MODIFICATIONS
No amendments or modifications to this Agreement shall be binding on either party
unless in writing, approved as to form and correctness by the City Attorney, and signed by both
parties. Once this Agreement has been assigned to an Association, any amendment shall be
executed by the Association in lieu of the individual condominium owners and their mortgagees.
The City Manager is hereby authorized to approve and execute amendments for non -substantive
amendments or modifications to this Agreement as needed,
32. CAPTIONS
Title and paragraph headings are for convenient reference and are not a part of this
Agreement.
33. INTERPRETATION
This Agreement is the result of negotiations between the parties and has been
typed/printed by one party for the convenience of both parties. Should the provisions of this
Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body
interpreting or construing the same shall not apply the assumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction that an instrument
is to be construed more strictly against the party which itself or through its agents prepared same,
it being agreed that the agents of both parties have equally participated in the preparation of this
Agreement.
34. ENTIRE AGREEMENT
This instrument and its attachments constitute the sole and only agreement of the parties
hereto and correctly sets forth the rights, duties and obligations of each to the other as of its date.
Any prior agreements, promises, negotiations, or representations not expressly set forth in this
Agreement is of no force or effect.
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Dated and executed by the Owner as of , 2005.
OWNER
CITY NATIONAL BANK OF FLORIDA, a
national banking association, as Trustee
under Land Trust No. 2401-1149-00
By:
Print Name and Title
CITY NATIONAL BANK OF FLORIDA
EXECUTES THIS INSTRUMENT SOLELY
AS TRUSTEE UNDER LAND TRUST NO.
2401-1149-00 AND NOT INDIVIDUALLY
AND NO PERSONAL JUDGMENT OR
DECREE SHALL EVER BE SOUGHT OR
OBTAINED AGAINST THE SAID BANK BY
REASON OF THIS INSTRUMENT,
STATE OF FLORIDA . )
)SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 2005, by who is
personally known to me or who has produced as
identification and who did (did not ) take an oath.
(NOTARY PUBLIC)
SEAL
12
Notary Public
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
ATTEST:
THE CITY OF MIAMI,
a municipal corporation
of the State of Florida
By: By:
Priscilla A. Thompson Joe Arriola
City Clerk City Manager
APPROVED AS TO FORM APPROVED AS TO INSURANCE
AND CORRECTNESS REQUIREMENTS
By: By:
Jorge L. Fernandez Dania Carrillo, Director
City Attorney
13
Risk Management Department
AGREED AND ACCEPTED BY:
BENEFICIARY
TRG-OMC, Ltd, a Florida limited partnership
By: TRG-OMC, Inc.,
a Florida corporation, its general partner
By:
Print Name and Title
Date
STATE OF FLORIDA )
)SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of
, 2005, by who is
personally known to me or who has produced as
identification and who did (did not ) take an oath.
(NOTARY PUBLIC)
SEAL
Notary Public
(Printed, Typed or Stamped Name of
Notary Public)
Commission No.:
My Commission Expires:
Z:lriverside\ECONOMIC DEVELOPMENTI_SHAREDIASSET MGNT SECTION\Lease ManagerslOne
Miami1Agr donation 9-26-05.doc
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