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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 ads 0 os-O/3 79 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, 2 ti 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 3 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. 4 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 5 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 6 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. 8 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 9 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. l0 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. 11 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 I4