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HomeMy WebLinkAboutExhibitVersion 10 This document prepared by and after recordation return to: Stanley B. Price, Esq. Bilzin Sumberg 200 South Biscayne Boulevard Suite 2500 Miami, FL 33131 LICENSE AGREEMENT THIS LICENSE AGREEMENT, ("AGREEMENT"), is made and entered into this day of , 2008 (the "Effective Date") by and between TWJ 1201 LLC, a Delaware 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 OWNER/DEVELOPER and the City are sometimes hereinafter collectively referred to as the "PARTIES"): RECITALS WHEREAS, OWNER/DEVELOPER is the owner of the real property described and depicted as Tract B in Exhibit A attached hereto and incorporated herein by reference, which Tract B consists of Parcel 1 and Parcel 2 as depicted in Exhibit A (collectively, "PROJECT PROPERTY"); and WHEREAS, the PROJECT PROPERTY is the subject of City of Miami Resolution No. R-04-0717, as same may be modified from time to time (collectively, "RESOLUTION"), which authorizes certain development to occur on the PROJECT PROPERTY, said development being hereinafter referred to as the "PROJECT"; and WHEREAS, the CITY desires to utilize Parcel 1 of the PROJECT PROPERTY as depicted in attached Exhibit A ("LICENSED PROPERTY") for passive park use for a four-year period of time; and WHEREAS, OWNER/DEVELOPER desires certain commitments and assurances from the CITY as to OWNER/DEVELOPER'S rights to develop and use the PROJECT PROPERTY; NOW THEREFORE, in consideration of the premises and the mutual covenants, conditions and agreements contained herein, the OWNER/DEVELOPER and the CITY do hereby agree as follows: 1. The Recitals set forth above are true and correct and are incorporated herein by reference. 2. OWNER/DEVELOPER agrees the CITY shall have an exclusive license to utilize the LICENSED PROPERTY for the exclusive purpose of passive park use for a four-year period beginning on and ending on 20 ("LICENSE"). 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 of four (4) years unless earlier terminated. OWNER/DEVELOPER shall have the right, upon giving not less than 120 days prior written notice to the CITY, to terminate the LICENSE at any time after the expiration of two (2) years following the Effective Date. If the LICENSE is terminated pursuant to the preceding sentence, the amount of time of the extension agreed to in paragraph three (3) of this AGREEMENT ("EXTENSION") of the Major Use Special Permit ("MUSP") granted in the RESOLUTION, shall be reduced by the amount of time that the four (4) year initial LICENSE TERM is reduced as a result of said termination of the LICENSE TERM. The CITY shall have the right, upon giving not less than ten (10) days prior written notice to the OWNER/DEVELOPER, to terminate the LICENSE at any time. The CITY's termination without cause shall not affect the EXTENSION granted by way of this AGREEMENT. 3. The CITY shall honor the OWNER/DEVELOPER's rights to develop the PROJECT in accordance with applicable laws. The OWNER/DEVELOPER shall have a four (4) year EXTENSION of the MUSP, such EXTENSION to commence on October 28, 2010 and to terminate on October 28, 2014. 4. All rights and privileges under this AGREEMENT shall be honored from the EFFECTIVE DATE to when (i) the LICENSE TERM 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. 5. The CITY agrees that, unless requested by the OWNER/DEVELOPER, during the time of the EXTENSION of the MUSP pursuant to this AGREEMENT: (a) the CITY shall take no action, legislatively or otherwise, to modify the PROJECT and (b) no modification of City 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 PROJECT. 6. As permissible by law, the CITY agrees that until the completion of the PROJECT it shall not bring, or participate in, request, or encourage the bringing of, any legislation or the enactment or adoption of any resolution which would substantially affect or substantially interfere with the development rights acquired by the OWNER/DEVELOPER pursuant to the RESOLUTION R-04-0717. 7. During the LICENSE TERM and so long as the CITY has possession or control of the LICENSED PROPERTY, the CITY 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 CITY shall be responsible for the payment of all costs of maintenance and all costs pertaining to the use of the LICENSED PROPERTY, including, but not limited to, the cost of 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 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. 8. Any improvements to the LICENSED PROPERTY during the LICENSE TERM shall be at the sole cost and expense of the CITY, except that pathways and benches, reasonably acceptable to the City Manager or designee, shall be paid for by the OWNER/DEVELOPER, not to exceed $50,000, as set forth in Exhibit _ attached hereto and incorporated herein, by reference. The CITY's improvements to the LICENSED PROPERTY shall be limited to the installation of furniture, fountains, lighting, fences, landscaping, play yards, paved parking, and pedestrian pathways (collectively, "IMPROVEMENTS"), unless otherwise agreed to in writing by the OWNER/DEVELOPER. Upon the expiration, or earlier termination of the LICENSE TERM, and upon the request of the OWNER/DEVELOPER, the CITY shall remove the IMPROVEMENTS or any portion thereof, and restore the LICENSED PROPERTY to the condition it was in prior to the installation of the IMPROVEMENTS. 9. OWNER/DEVELOPER 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. 10. 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 $100,000, or any claim or judgments or portions thereof, that, when totaled with all other occurrences, exceeds $200,000, 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 state's waiver of sovereign immunity 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 from any liability or claim arising out of the negligent performance or failure of performance 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 indemnify 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. 11. The OWNER/DEVELOPER does hereby agree to indemnify and hold harmless the City, its officials and employees 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 OWNER/DEVELOPER, its employees, agents and any contractors hired by the OWNER/DEVELOPER directly in connection to the property or its duties as the owner and as the developer of the PROPERTY. 12. The CITY and Owner/Developer mutually agree to carry and keep in full force and effect at all times during the LICENSE TERM, a commercial general liability/excess casualty policy of insurance with limits of at least $2,000,000 per occurrence and $10,000,000 aggregate, subject to a maximum self insured retention limit not to exceed $500,000 for bodily injury and property damage. In the event of a loss, each party shall be responsible for payment of any and all applicable policy deductibles, including self insured retentions, expenses and costs associated with the loss. The policy must include coverage for premises and operations liability, products and completed operations, contractual and contingent liability, and personal and advertising injury liability. The coverage must be placed with an insurance carrier authorized to do business in the State of Florida. The certificate of insurance shall be subject to the approval of the City's Risk Manager and the City Attorney, and shall also be subject to approval by the OWNER/DEVELOPER, which will not be unreasonably withheld or delayed. The insurance policy shall be procured and paid for by the both parties. The insurance carrier issuing the insurance policy must be rated no less than (A) as to management and no less than a Class (V) as to its financial strength by the latest edition of Best's Insurance Guide and must be approved by the City's Risk Manager. The City and OWNER/DEVELOPER shall each provide a certificate of insurance naming the other as an "Additional Insured", and/or "Additional Covered Party" on each of their corresponding polices. Certificates of insurance shall be supplied to the satisfaction of the CITY and OWNER/DEVELOPER prior to the commencement of the LICENSE. Certificates of Insurance bearing the name of the OWNER/DEVELOPER, OR CITY as Additional Insured, and/or Covered Party shall in no way relieve the CITY OR OWNER/DEVELOPER of the obligation to respectively list each as Additional Insured, and/or Additional Covered Party on their actual insurance policies. All insurance certificates shall provide at least thirty (30) days advance written notice of any material changes or cancellation, except for non payment of premium. In the event of a cancellation, or notice of non renewal, the CITY or OWNER/DEVELOPER shall procure and immediately provide a new certificate of insurance in accordance to the terms of this section. The OWNER/DEVELOPER or the CITY have the right to terminate this LICENSE AGREEMENT if either party fails to comply with the insurance requirements contained herein. Notice of termination must be in writing giving (10) days to the appropriate party. 13. The individuals executing this AGREEMENT each represent that he or she is fully authorized by law to bind the party for whom such individual is executing the AGREEMENT. 14. 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. 15. 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: OWNER/DEVELOPER: CITY: TWJ 1201, LLC, a Florida limited liability company Attention: Jerome Hollo 100 South Biscayne Boulevard Suite 900 Miami, Florida 33131 City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 16. 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 OWNER/DEVELOPER 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. 17. 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 OWNER/DEVELOPER, 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. 18. 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. 19. 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. 20. OWNER/DEVELOPER represents and warrants that there shall be no unlawful discrimination as provided by federal, state or local law, in connection with its perfoiniance under this AGREEMENT. 21. 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. 22. This AGREEMENT may not be assigned, transferred, sold, pledged or encumbered by the OWNER/DEVELOPER without agreement by the CITY. [signature page follows] Signed, Sealed and Delivered in the Presence of: OWNER/DEVELOPER TWJ 1201, LLC, a Delaware limited liability company Print Name: Address: By: Name: Title: Print Name: Address: STATE OF FLORIDA ) SS COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2008, by , as the of TWJ 1201, LLC, a Delaware limited liability company, on behalf of such company; such person ( ) is personally known to me or ( ) presented as identification. NOTARY PUBLIC STATE OF FLORIDA Print Name: Commission No.: Commission Expires: [SEAL] 7 Approved as to Legal Form: Julie O. Bru, City Attorney Approved as to Insurance Requirements: Lee Ann Brehm, Risk Manager 8 Signed, Sealed and Delivered in the Presence of: CITY OF MIAMI Print Name: Address: Print Name: Address: STATE OF FLORIDA ) SS COUNTY OF MIAMI-DADE By: Pedro G. Hernandez, City Manager The foregoing instrument was acknowledged before me this day of , 2008, by Pedro G. Hernandez, 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 Expires: [SEAL] 9