HomeMy WebLinkAboutExhibit 2ATTACHMENT "1"
CITY OF MIAMI AND CIVIC TOWERS
REMEDIATION AGREEMENT
THIS AGREEMENT is made and entered into this day of
2006, by and between the City of Miami, a municipal corporation of the State of Florida
(the "City"), whose address is 444 S.W. 2nd Avenue, Miami, Florida 33130 and Civic
Towers Associates, Ltd., a Florida limited partnership, whose address is 2828 Coral
Way, Miami, Florida 33145, its successors and/or assigns (hereinafter the "Owner").
WITNESSETH:
WHEREAS, Owner holds fee simple title to a certain parcel of real property
located at 1855 N.W. 15th Avenue in Miami -Dade County, Florida, more particularly
described in attached Exhibit "A"(the "Property");
WHEREAS, City and Owner entered into a Site Access and Remediation
Agreement on or about February , 2003 wherein the City's environmental consultants
prepared an Interim Remediation Action Plan (the "IRAP") for the Property for submittal
to the Miami -Dade County Department of Environmental Resource Management
("DERM").
WHEREAS, the TRAP report was submitted to DERM. Subsequent to its review
of the IRAP, DERM required the City to remediate the Property and the City agreed to
undertake the remediation for the removal and/or treatment of contaminated soil and/or
groundwater on the Property in accordance with the IRAP (the "Remediation"); and
WHEREAS, on or about April 26, 2005, DERM granted an extension of time for
the Remediation of the Property based on the satisfaction of certain conditions listed in a
letter addressed to the City Manager of the City, attached hereto and incorporated herein
collectively as Exhibit "B."
NOW THEREFORE, in consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Owner and
City agree as follows:
1. The above recitals are true and correct and are incorporated herein by
reference.
2. The City has taken all necessary remediation actions to obtain approval of
a no further action with conditions approval from DERM on the Property ("Conditional
Closure") and, in connection therewith has requested Owner to execute a restrictive
covenant, in the form required by DERM, and attached hereto as Attachment 1 (the
"Covenant").
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3. Owner agrees to execute the Covenant and implement the institutional and
engineering controls set forth therein, on the condition that in the future, if the Property is
used in a manner that will cause any governmental agency with environmental
jurisdiction over the Property to require additional remediation action to maintain
Conditional Closure of the Property, then, at the request of any such governmental
agency or the Owner the City will promptly commence and diligently proceed to take
such remedial actions as are necessary to obtain or maintain Conditional Closure of the
Property at no cost to Owner.
4. Indemnity.
a) Subject to the limitation of section 768.28 of the Florida Statutes
and any applicable case law regarding sovereign immunity, City agrees to indemnify and
save harmless the Owner, its present and future officers or directors (or officials),
employees and agents, from and against any and all liabilities, penalties, fines,
forfeitures, demands, claims, causes of action, suits, and costs and expenses incidental
thereto (including costs of defense, settlement, and reasonable attorney's fees) which any
and all of them may hereinafter suffer, incur, be responsible for and pay out as a result of
bodily injuries (including death) to any person, damages (including loss of use), to any
property (public or private), contamination of or adverse effects on the environment, or
any violation or alleged violation of statutes, ordinances, orders, rules or regulations or
any governmental entity or agency, directly or indirectly caused by, or rising out of, any
negligent or willful act or omission of City, its employees or contractors or
subcontractors in the performance of this Agreement. The indemnification provided in
this paragraph shall specifically apply to and include any liens placed on the Property by
contractors or subcontractors of City or any claims or actions brought by or on behalf of
any contractors or subcontractors of City in connection with the Activities on the
Property.
b) The Owner agrees to indemnify and save harmless City, its present
and future officers or directors (or officials), employees and agents, contactors or
subcontractors and assignees, from and against from and against any and all liabilities,
penalties, fines, forfeitures, demands, claims, causes of action, suits, and costs and
expenses incidental thereto (including costs or defense, settlement, and reasonable
attorney's fees), which any and all them may and hereinafter suffer, incur, be responsible
for or pay out as a result of bodily injuries (including death), to any person, damage
(including loss of use) to any property (public or private), contamination of or adverse
effects on the environment, or any violation or alleged violation of statutes, ordinances,
orders, rules or regulations or any governmental entity or agency, directly or indirectly
caused by, or arising out of any negligent or willful acts or omissions of the Owner, its
employees or agents in the performance of this Agreement.
5. No Jury Trial, City and Owner hereby, voluntarily, knowingly and
intentionally WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY in any legal
action or proceeding arising under or in connection with this Agreement, regardless of
whether such action or proceeding concerns any contractual or tortuous or other claim.
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City acknowledges that this wavier of jury trial is a material inducement to Owner in
permitting the site access, that Owner would not have given such permission without this
jury trial wavier, and that each of them has been represented by an attorney or has had an
opportunity to consult with any attorney regarding this Agreement and understands the
legal effect of this jury trial waiver.
6. Successors and Assigns; Assignment. This Agreement shall bind and inure to
the benefit of Owner and their respective heirs, executors, administrators, personal and
legal representatives, successors and permitted assigns.
7. Conflict with Law. Nothing contained herein shall be construed so as to
require to commission of any act contrary to law, and wherever there is any conflict
between any provisions contained herein any present statute, law, ordinance or
regulation, the letter shall prevail; but the provision of this Agreement which is affected
shall be curtailed and limited only to the extent necessary to bring it within the
requirements of the law.
8. Miscellaneous. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida. No amendment, change or
modification of this Agreement shall be valid, unless in writing and signed by the party
against whom enforcement of the change is sought. All of the terms and provisions
contained herein shall inure to the benefit of and shall be binding upon the parties hereto
and there respective heirs, legal representatives, successors and assigns. No waiver of a
breach of any provision of this Agreement shall constitute a waiver of any proceeding or
succeeding breach of the same or any other provision hereof.
9. Termination. This Agreement shall terminate at such time as a No Further
Action With Conditions determination is issued by DERM for the Property, subject to the
conditions listed in paragraph three (3) above. The term of the Agreement may be
extended if such extension is in writing and executed .by both parties thereto, or their
respective successors or assigns.
10. Binding Effect. This Agreement shall binding upon the Owner, City, and
their successors and assigns.
11. Counterparts. The Agreement any be executed in any number of
counterparts, all of which together shall constitute one and the same agreement, and any
part or signatory thereto may execute this Agreement by signing any such counterpart.
Delivery of a facsimile of an executed copy of the Agreement shall be effective to bind
the executing party. Each party so executing this Agreement shall promptly deliver an
original executed counterpart to the other signatories.
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IN WITNESS WHEREOF, the Owner and City have cause this Agreement to be
executed on the date and year first mentioned above.
CITY
CITY CLERK CITY MANAGER
By: By:
Priscella Thompson, City Clerk Pedro Hernandez, City Manager
OWNER
CIVIC TOWERS ASSOCIATES, LTD.
c/o The Related Company, Inc.
By:
Print Name: Print Name:
Title: Witness Title:
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
JORGE L. FERNANDEZ DIANE CARRILLO
City Attorney Risk Management
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