296A-98 RDA
RESOLUTION NO.
296A-98
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH
REDEVELOPMENT AGENCY, AUTHORIZING THE CHAIRMAN AND
SECRETARY OF THE AGENCY TO EXECUTE A GARAGE FACILITY
MANAGEMENT AGREEMENT WITH QUIK PARK OF FLORIDA, INC. FOR THE
MANAGEMENT OF THE CONVENTION CENTER HOTEL GARAGE ON 16TH
STREET AND COLLINS AVENUE.
WHEREAS, the Miami Beach Redevelopment Agency ("RDA") on July 2, 1997, in accordance with
the Garage Development Agreement between the RDA and St. Moritz Hotel Corp., issued a Request for
Qualifications to six (6) pre-selected garage operators for the management of the garage component of the
Anchor Shops at South Beach and Parking, located on the west side of Collins Avenue at 16th Street; and
WHEREAS, on August 7, 1997, proposals were received from three of the recipients of the Request
for Qualifications; and
WHEREAS, on October 8, 1997, the three proposers made formal presentations to the review
committee which was appointed to review the written submissions; and
WHEREAS, the review committee recommended Quik Park as the first choice on the basis of the
company's experience in running hotel-related parking and valet operations; and
WHEREAS, on December 3, 1997, the Chairman and Members of the RDA adopted Resolution No.
286-97 which authorized the staff of the agency of the RDA to negotiate with Quik Park; and
WHEREAS, such negotiations have resulted in the Garage Facility Management Agreement
attached hereto; and
WHEREAS, the Executive Director of the RDA recommends that the Chairman and Members of
the RDA authorize the Chairman and Secretary to execute the attached Garage Facility Management
Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE
MIAMI BEACH REDEVELOPMENT AGENCY, as follows:
1. The Chairman and Secretary ofthe RDA are hereby authorized and directed to execute the Garage
Facility Management Agreement with Quik Park of Florida, Inc., attached hereto, for management of the
Convention Center Hotel Garage on 16th Street and Collins Avenue.
2. This resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED this 1 s t day of
July
, 1998t~
CHAIRMAN
A'FJ,EST:
1M 1
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APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
F:\A TI,()\LEVLlRESO&ORDIGARAGMGT.RF.S
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R pment Agency
Geneml r.OI''''~''!
Miami Beach
Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Telephone: (305) 673- 7295
Fax: (305) 673- 7772
REDEVELOPMENT AGENCY MEMORANDUM NO. 98- L..-2.
July 1, 1998
,.
Chairman and Members of the Board
of the Miami Beach Redevelopment Agency
#
Sergio Rodriguez
Executive Director
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY, AUTHORIZING THE CHAIRMAN
AND SECRET ARY OF THE AGENCY TO EXECUTE A GARAGE
FACILITY MANAGEMENT AGREEMENT WITH QUIK PARK OF
FLORIDA, INC. FOR THE MANAGEMENT OF THE CONVENTION
CENTER HOTEL GARAGE ON 16TH STREET AND COLLINS AVENUE.
TO:
FROM:
SUBJECT:
RECOMMENDATION
Adopt the Resolution.
BACKGROUND
In accordance with the Garage Development Agreement between the RDA and St. Moritz Hotel
Corp., Requests for Qualifications (RFQs) for the operation of the garage component of the Anchor
Shops at South Beach and Parking were sent to six pre-selected garage operators identified in Exhibit
Sea) of the Garage Easement Agreement between the RDA and MB Redevelopment, Inc. The list
included USA Parking, Quik Park, Apcoa, Inc., Central Parking System, Centre City Parking and
Republic Parking System.
Proposals were received from three of the recipients of the RFQ: USA Parking, Central Parking
System and Quik Park.
On December 3, 1997, the Miami Beach Redevelopment Agency (RDA) authorized the
Administration to negotiate with Quik Park of Florida, Inc. for the operation of the parking garage
component of the Anchor Shops at South Beach and Parking. The selection was made on the basis
of the company's experience in running hotel-related parking and valet operations.
S()UTt-i V{)I~T~
Vedevel()pment [)istrict
Agenda Item 3 A
I:!ede
Date J- l-9~
ANALYSIS
Negotiations with Quik Park have resulted in the Garage Facilities Management Agreement attached
hereto. The Agreement stipulates that the company provide its services to operate the garage and
sets forth, among other things:
Duties and responsibilities
Management
Quality standards
Equipment
Accounting methods
Reimbursibles
Term of contract
Management fees
The most controversial aspect of the Agreement was the management fee. The proposed operator
had asked" for a $100,000 annual fee. The RDA's negotiating team insisted on a much lower fee,
commensurate with other operations in South Florida. The operator has subsequently agreed to
reduce the fee to $40,000 annually.
CONCLUSION
The Administration recommends that the Redevelopment Agency Board approve the attached
Resolution.
1\'-"
SR:HSM:jph
Attachment
T:\AGENDA IJULOI98\RDA \QUICKPRK.MEM
GARAGE FACILITY MANAGEMENT AGREEMENT
CONVENTION CENTER HOTEL GARAGE
16TH STREET AND COLLINS AVENUE
By and Between
Quik Park of Florida, Inc.
and
Miami Beach Redevelopment Agency
F:\A TTO\LEVL\PARKING\PARKlNG7.AGR
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GARAGE FACILITY MANAGEMENT AGREEMENT
CONVENTION CENTER HOTEL GARAGE
16TH STREET AND COLLINS AVENUE
Table of Contents
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article 1 - Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Meaning of Words and Terms ................................ 1
Article 2 - Management of the Garage ........................................... 3
Section 2.1. Management.............................................. 3
Section 2.2. Duties................................................... 3
Section 2.3. Security.................................................. 5
Article 3 - Standards of Quality and Operation for Garage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.1. Relationship with Hotels. .................................... 5
Section 3.2. Coordination with Hotel Management. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.3. Garage Systems. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.4. Hotel Names and Service Marks; Disclaimers. . . . . . . . . . . . . . . . . . . . . 6
Section 3.5. Parties Named on Insurance Policies. ..........................6
Section 3.6. Inspections............................................... 6
Section 3.7. Signs.................................................... 6
Article 4 - Parking Control Equipment. ........................................... 7
Section 4.1. Agency to Provide Equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.2. Repair and Replacement. ................................... 7
Article 5 - Rates. ................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 5.1. Establishment of Parking Rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Article 6 - Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 6.1. Personnel................................................ 8
Section 6.2. On-Site Supervisor. ........................................ 8
Section 6.3. No Discrimination in Employment. ............................. 8
Section 6.4. Compliance with Laws and Regulations. ........................ 8
Section 6.5. Conduct of Employees. ..................................... 8
Section 6.6. Uniforms................................................. 8
Section 6.7. Unions. ................................................. 9
Article 7 - Books of Account ................................................... 9
Section 7.1. Accounting. ..............................................9
Section 7.2. Monthly Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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Section 7.3. Daily Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Article 8 - Funds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8.1. Fiduciary Duty ............................................ 9
Section 8.2. Ownership of Funds; No Set-Off. .............................. 9
Section 8.3. Interest on Amounts Due; Shortages. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8.4. Daily Deposit of Cash Receipts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Article 9 - Reimbursement of Certain Expenditures. ................................ 10
Section 9.1. Reasonable Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 9.2. Advance of Payroll Costs and Premiums for Insurance. . . . . . . . . . . . . 11
Section 9.3. Petty Cash Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 9.4. Non-Affiliates to Supply Products and Services; Discounts. .. . . . . . . . 11
Article 10. - Insurance and Claims. ............................................. 11
Section 10.1. Liability Insurance. ........................................ 11
Section 10.2. General Provisions Applicable to All Policies. . . . . . . . . . . . . . . . . . . . . 12
Section 10.3. Indemnification. .......................................... 14
Section 10.4. Payment of Deductibles Under Insurance Policies. . . . . . . . . . . . . . . . 14
Section 10.5. Unrelated Valet Operators .................................. 15
Article 11 - Management Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 11.1. Management Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Article 12 - Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 12.1. Initial Term. .............................................15
Section 12.2. Extension. .............................................. 15
Section 12.3. Training of Employees Prior to Commencement Date. . . . . . . . . . . . . . 15
Article 13 - Default. ......................................................... 15
Section 13.1. Termination By Agency Upon Certain Events. ................... 15
Section 13.2. Termination By Garage Operator. . . . . . . . . . . . . , . . . . . . . . . . . . . . . 16
Article 14 - Independent Contractor; Subordination. ................................ 16
Section 14.1. Independent Contractor; Agreement Subordinate. .... . . . . . . . . . . . . 16
Article 15 - Labor Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 15.1. Garage Operator Responsible for Labor Relations. ............... 17
Article 16 - Hazardous Materials. .............................................. 17
Section 16.1. Use of Hazardous Materials. ................................ 17
Section 16.2. Compliance. .........,.................................. 17
Section 16.3. Indemnification. .......................................... 17
Section 16.4. Survival. ......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Article 17 - Notices, Consent, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 17.1. Notices Between Parties. ................................... 17
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Section 17.2. Notices to Hotels ......................................... 18
Section 17.3. Change of Address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Article 18 - Limitation of Liability; No Conflict of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 18.1. Limitation of Liability. ...................................... 20
Section 18.2. No Conflict of Interest. ..................................... 20
Article 19 - Assignment; Subcontracts. .......................................... 20
Section 19.1. No Assignment of Agreement; No Subcontracts. ................. 20
Article 20 - Miscellaneous. ................................................... 21
Section 20.1. Successors and Assigns. ................................... 21
Section 20.2. Governing Law. .......................................... 21
Section 20.3. Remedies Cumulative. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 20.4. Severability. ............................................. 21
Section 20.5. No Recording in Public Records. .............................21
Section 20.6. No Continuing Waiver. ..................................... 21
Section 20.7. Table of Contents and Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 20.8. No Waiver of Police or Governmental Power. ...................22
Section 20.9. Time of Essence. ......................................... 22
Section 20.10. Interpretation. ...................................... 22
Section 20.11. Entire Agreement; No Amendments. .................... 22
Index of Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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GARAGE FACILITY MANAGEMENT AGREEMENT
CONVENTION CENTER HOTEL GARAGE
16TH STREET AND COLLINS AVENUE
This Agreement (the "Agreement"), dated as of the ~ day of July , 1998, by
and between Quik Park of Florida, Inc., a Florida corporation (the "Garage Operator"), and
Miami Beach Redevelopment Agency, a public body corporate and politic (the "Agency").
Recitals
A. The Agency has heretofore entered into a Garage Easement Agreement, dated as of
September 20, 1996, with MB Redevelopment, Inc., a Florida corporation, owner of the Loews
Miami Beach Hotel, which Garage Easement Agreement, among other things, granted to MB
Redevelopment a non-exclusive easement solely for the purpose of parking up to 560 vehicles in
a garage facility located on the west side of Collins Avenue across from the Loews Miami Beach
Hotel at Collins Avenue and 16th Street, Miami Beach, Florida.
B. The Agency has heretofore entered into a Garage Easement Agreement, dated as of May
28, 1998, with RDP Royal Palm Hotel Limited Partnership, a Florida limited partnership, owner of
the Royal Palm Crowne Plaza Hotel, which Garage Easement Agreement, among other things,
granted to RDP a non-exclusive easement solely for the purpose of parking up to 174 vehicles in
the Garage.
C. The Loews Hotel and the Crowne Plaza Hotel will utilize the Garage for self-parking for their
guests' motor vehicles and for valet parking.
D. In order to assure that the Garage will be operated in a courteous and efficient manner by
a skilled independent contractor, the Agency has heretofore issued a Request for Qualifications
from experienced garage managers and has selected the Garage Operator to manage the Garage
and the Garage Operator has agreed to manage and operate the Garage in accordance with this
Agreement.
NOW THEREFORE, in consideration of the mutual promises made herein, the Garage
Operator and the Agency agree as follows:
Article 1 - Definitions
Section 1.1. Meaning of Words and Terms. The following words and terms as used in this
Agreement shall have the following meanings:
1.1.1. "Approved Budget" shall mean the annual budget of income and expenses of the
Garage for any Fiscal Year, which budget shall have been approved by the
Agency prior to commencement of such Fiscal Year, and which shall be updated
and submitted at least quarterly to the Agency.
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1.1.2. "Commencement Date" shall mean the date established by the Agency for
commencement of the Term of this Agreement, as set forth in Section 12.1
hereof.
1.1.3. "Crowne Plaza Garage Easement Agreement" shall mean that certain Garage
Easement Agreement between the Agency and RDP Royal Palm Hotel Limited
Partnership, dated as of May 28, 1998, recorded in Official Records Book _
at Page _ of the Public Records of Dade County, Florida.
1.1.4. "Crowne Plaza Hotel" shall mean the Royal Palm Crowne Plaza Hotel located at
Collins Avenue and 15th Street, Miami Beach, Florida, or any successor thereto.
1.1.5. "Fiscal Year" shall mean the twelve (12) month period commencing on October
1 of any year and ending on September 30 of the following year.
1.1.6. "Garage" shall mean the garage facility located on the west side of Collins
Avenue across from the Loews Miami Beach Hotel at Collins Avenue and 16th
Street, Miami Beach, Florida.
1.1.7. "Garage Easement Agreements" shall mean the Loews Hotel Garage Easement
Agreement and the Crowne Plaza Garage Easement Agreement.
1.1.8. "Garage Employees" shall mean all of the personnel of the Garage Operator
whose positions are listed in the Approved Budget for the Garage.
1.1.9. "Garage Supervisor" shall mean the officer or employee of the Garage Operator
who has direct executive responsibility for the day-to-day operation of the Garage.
1.1.10. "Hotels" shall mean the Loews Hotel and the Crowne Plaza Hotel.
1.1.11. "Lease" shall mean that certain Agreement of Lease between Miami Beach
Redevelopment Agency and MB Redevelopment, Inc., dated September 20,
1996, and recorded in the Public Records of Dade County, Florida at Official
Records Book 17360, at Page 4753.
1.1.12. "Loews Garage Easement Agreement" shall mean that certain Garage
Easement Agreement between the Agency and MB Redevelopment, Inc., dated
as of September 20, 1996, recorded in Official Records Book 17362 at Page 130
of the Public Records of Dade County, Florida.
1.1.13. "Loews Hotel" shall mean the Loews Miami Beach Hotel at Collins Avenue and
16th Street, Miami Beach, Florida, or any successor thereto.
1.1.14. "Management Fee" shall mean the fee the Garage Operator receives for
managing and operating the Garage, as set forth in Article 11 hereof.
1.1.15. "MB Redevelopment" shall mean MB Redevelopment, Inc., a Florida corporation.
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1.1.16. "Monthly Statement" shall mean a statement of income, expenses and
disbursements in reasonable detail as may be reasonably required by the Agency,
certified as true and correct by a senior executive officer of Garage Operator, with
respect to the operation of the Garage during the month preceding the date of
such report.
1.1.17. "Permitted Users" shall mean valet parking operators, hotel guests and other
persons who are permitted to enter and exit the Garage by means of access
cards, parking passes, or similar devices that may be utilized, so that they are not
required to make payment to the cashier each time they enter or exit the Garage.
1.1.18. "RDP" shall mean RDP Royal Palm Hotel Limited Partnership, a Florida limited
partnership, owner of the Crowne Plaza Hotel.
1.1.19. "Revenue" shall mean all monies paid or payable to the Garage Operator, from
any source, in connection with the operation of the Garage, including, but not
limited to, all income derived by the Garage Operator from the direct fees and
charges made for parking, all indirect revenues received through supplying of any
other services legally suppliable by the Garage Operator to users of the Garage,
all rents received by the Garage Operator from rental of space comprising any
part of the Garage, and any proceeds of use and occupancy insurance on the
Garage or any part thereof.
1.1.20. "Term" shall mean the thirty-six month period beginning on the Commencement
Date established pursuant Section 12.1 hereof, or as such period may be
extended pursuant to Section 12.2 hereof.
Article 2 - Management of the Garage
Section 2.1. Management. Subject to and upon the terms and conditions set forth herein, and
to the Approved Budget, the Garage Operator shall manage and operate the Garage, and the
Garage Operator agrees to make diligent efforts to maximize revenues and minimize operating
costs in a manner consistent with the standards of quality set forth herein, and to operate the
Garage in an efficient manner giving due consideration to the non-exclusive parking easements
of the Loews Hotel and the Crowne Plaza Hotel. It is expressly understood and agreed that the
Garage shall be open for business 24 hours a day, seven days a week, including holidays. The
Garage Operator acknowledges that it has reviewed the construction plans and specifications for
the Garage, has visited the construction site, and confirms that the Garage, as being constructed,
will be sufficient for the purposes contemplated by this Agreement. It is expressly understood and
agreed that this Agreement will not take effect unless and until the construction of the Garage is
successfully completed to the satisfaction of the Agency, and that no amounts payable hereunder
to the Garage Operator shall be due until the Garage is opened for business.
Section 2.2. Duties. The duties of the Garage Operator shall be at the direction of the Agency.
Notwithstanding anything to the contrary contained herein, the Garage Operator shall be obligated
to perform its duties hereunder only to the extent that funds are made available to the Garage
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Operator in accordance with the Approved Budget. The Garage Operator's duties shall include,
but not be limited to, the following:
2.2.1. Hiring, training and supervising all personnel employed for the operation of the
Garage;
2.2.2. Providing security personnel, and security for Garage users and vehicles in the
Garage at all times, consistent with the Approved Budget;
2.2.3 Purchasing the supplies and housekeeping equipment needed to operate, clean
and maintain the Garage, including, but not limited to, spare parts for parking
control equipment, as directed by the Agency and in accordance with the
Approved Budget;
2.2.4 Submitting detailed reports as provided in the Garage Easement Agreements;
2.2.5 Creating and maintaining records relating to the collection and deposit of revenue
derived from operation of the Garage, as more fully set forth in Article 7 hereof;
2.2.6 Maintaining revenue, payroll, expense, parking activity and other such accounting
and statistical records required by the Agency;
2.2.7 Preparing and submitting to the Agency an annual budget by March 1 of each
year for review and approval by the Agency throughout the term of the
Agreement, which annual budget, upon approval by the Agency in accordance
with Section 2.2.7 hereof shall be the Approved Budget for the operation and
maintenance of the Garage; and preparing and submitting to the Agency such
amendments, supplements or other modifications to the Approved Budget as may
be necessary from time to time;
2.2.8 Informing the Agency of the need for major repairs, replacements to, and the
painting or patching of the Garage, its operating equipment, fixtures and
furnishings;
2.2.9 Informing the Agency of any unusual incidents or events which occur, such as fire,
flood, vandalism, theft, casualty, or damage of any other kind;
2.2.10 Preparing and submitting to the Agency within forty-eight (48) hours a report on
each occurrence of damage and/or personal injury claims arising in connection
with the operation of the Garage;
2.2.11 Negotiating for the repair, replacement, maintenance, painting or patching of the
Garage, its operating equipment, fixtures and furnishings generally, at the sole
option of the Agency; and
2.2.12 Performing routine cleaning and maintenance of the Garage as may be necessary
in order to conform to the quality standards set forth in Article 3 hereof.
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2.2.13 Coordinating, on a daily basis, with the Hotels' management regarding daily
parking requirements.
It is understood and agreed that this Agreement is for Garage management services only,
and at no time shall the Garage Employees perform valet services, or otherwise operate the
vehicles of customers of the Garage, or be in possession of keys to any vehicles parked in the
Garage, or otherwise be responsible in any way for such vehicles, except as set forth in this
Agreement.
Section 2.3. Security. The Garage Operator shall be responsible for providing security or
patrol services for the Garage. Such security shall be comparable to the security at other hotel
garages in the Miami-Dade County area and shall be in accordance with the Approved Budget.
The Garage Operator may provide such security itself, or may subcontract such security subject
to the prior written approval of the Agency. In the event that the Garage Operator subcontracts
such security, the Garage Operator shall obtain not less than three (3) bids from security firms
approved, in writing, by the Agency. The Garage Operator shall be required to indemnify the
Agency for any loss, liability or expense arising from its failure to comply with the provisions of this
Section 2.3, unless such loss, liability or expense is covered by insurance carried or required to be
carried by the Agency pursuant to Article 10 hereof.
Article 3 - Standards of Quality and Operation for Garage.
Section 3.1. Relationship with Hotels. Garage Operator understands and agrees that the
Garage has been constructed to provide parking for the Loews Hotel and the Crowne Plaza Hotel,
including provision of space for valet parking and self-parking for the guests of each Hotel. The
Garage Operator acknowledges that it has received copies of each of the Garage Easement
Agreements. The Garage Operator covenants and agrees that in its management and operation
of the Garage, it will comply with the provisions of the Garage Easement Agreements, including,
without limitation, those provisions granting to the Loews Miami Beach Hotel a non-exclusive
easement to use 560 Parking Spaces (as such term is defined in the Loews Garage Easement
Agreement) and those provisions granting to the Crowne Plaza Hotel non-exclusive easement to
use 174 Parking Spaces (as such term is defined in the Crowne Plaza Garage Easement
Agreement).
Section 3.2. Coordination with Hotel Management. On a weekly basis, the Garage
Supervisor will meet with the general manager of each of the Hotels or their designees, and, if
applicable, with the valet parking manager for each of the Hotels, for the purpose of coordinating
the operation of the Garage in order that Permitted Users are provided with service consistent with
the level of quality provided by the Hotels so that the Garage will appear to operate as an amenity
of the Hotels. At such meetings, the Garage Supervisor and the general managers of the Hotels
shall discuss and document the weekly parking requirements of each Hotel and forecast upcoming
events at each Hotel in order to determine Garage staffing requirements.
Section 3.3. Garage Systems. The Garage Operator will establish mechanisms and
procedures as may be necessary to provide for payment of Garage fees and charges by Hotel
guests and to provide for a Permitted User validation system.
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Section 3.4. Hotel Names and Service Marks; Disclaimers. The Garage Operator will not
use the name of either Hotel or any other trademark, trade name or service mark relating to the
Hotel, except as and to the extent authorized in writing by each Hotel. At the request of either
Hotel, Garage Operator shall (i) provide written disclaimers to Garage patrons and/or (ii) post
written notices in the Garage, in each case mutually acceptable to Garage Operator and such
Hotel, informing Garage patrons that the Garage is not owned or operated by the owner or operator
of the Hotel.
Section 3.5. Parties Named on Insurance Policies. Each Hotel owner and Hotel operator
and each of their affiliates, the Agency, the Garage Operator, any Recognized Mortgagee (as
defined in the Lease), and any Facility Mortgagee (as defined in the Lease), shall be named as
additional insureds on all liability insurance maintained by the Garage Operator or the Agency and
shall be entitled to certificates of insurance reflecting such insurance.
Section 3.6. Inspections. The Agency shall have the right, at any time, without prior notice,
to inspect, examine, and investigate any and all operations and activities of the Garage Operator
and its officers and employees in connection with the operation and maintenance of the Garage
and the performance of the Garage Operator under this Agreement. The Agency shall have the
right, at any time, without prior notice, to examine or audit the books, records and papers of the
Garage Operator insofar as they relate to the operation and/or maintenance of the Garage or
performance of the Garage Operator's duties under this Agreement. For the purposes of such
audit or examination, the Garage Operator shall maintain all such books, records and papers at a
place in Miami-Dade County, Florida, approved by the Agency in its reasonable discretion (and,
if the Garage Operator elects to do so, such books and records may be kept at the Garage,
provided that they are stored in such manner as to assure their security in the event of hurricane
and flood resulting from hurricane). The Garage Operator agrees to cooperate with the Agency
in any and all such inspections, examinations, investigations, and audits, and aid the Agency, its
officers, employees and outside consultants in any such activities.
Section 3.7. Signs. All signs on the Garage shall be in conformance with this Section 3.7.
3.7.1. The Garage Operator shall be permitted to display reasonable signage with its
name and/or corporate logo identifying it as the operator of the Garage (including
at the entrance to the Garage). All such signs shall be subject to the prior written
approval of the Agency in its reasonable discretion prior to being attached or
affixed to the Garage, and all such signs shall be in conformance with all
applicable building, zoning and other applicable government regulations.
3.7.2. Except as provided in Section 3.7.1, the Garage Operator shall not erect or
display, or permit to be erected or displayed any interior or exterior sign, poster,
billboard or advertising matter or structure of any kind on the Garage premises
without first obtaining the written consent of the Agency. Any sign, poster or other
materials, if permitted by the Agency, shall be at the sole cost and expense of the
Garage Operator, and any such sign, poster or other material installed shall
thereupon become property of the Agency, except sign age with the Garage
Operator's name and/or logo. The Garage Operator shall remove any sign,
poster or other material installed by it at its own cost and expense when directed
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by the Agency in writing. The Garage Operator shall, at the Agency's cost, install
such other signs as are requested and approved by the Agency to designate
appropriately the parking areas and their entrances and exits as well as for other
purposes.
Article 4 - Parking Control Equipment.
Section 4.1. Agency to Provide Equipment. The Agency, at its sole cost and expense shall
furnish all operating parking equipment which shall be used in the operation of the Garage, and the
Garage Operator shall use such equipment for said operation. The Agency shall have the right at
any time to install any revenue control equipment it desires, including, but not limited to, cash
registers and parking validation equipment, and the Garage Operator shall train its personnel to
use such equipment and shall incorporate such equipment into its operation of the Garage.
Section 4.2. Repair and Replacement. The Garage Operator shall train the Garage
Employees in the proper use and operation of the Agency's revenue control equipment and other
equipment and machinery used in the operation of the Garage. The Garage Operator shall
promptly report to the Agency any breakdowns, necessity for repair or replacement, operating
problems or other technical problems with such equipment. The Agency shall conduct an
inspection of all such equipment and machinery, and of the physical structure of the Garage, at
least annually and the Agency shall be responsible for and pay the cost of all necessary equipment
replacement, major structural repairs, major exterior maintenance, exterior painting, roof repair and
replacement, and maintenance of any street level retail space. Notwithstanding the foregoing, the
Garage Operator shall be responsible for repairing or replacing any equipment or portions of the
Garage that are damaged or destroyed as a result of the Garage Operator's negligence, unless
such damage is covered by insurance carried or required to be carried by the Agency pursuant to
Article 1 0 hereof.
Notwithstanding the Agency's annual inspection required pursuant to this Section 4.2, the
Garage Operator shall submit to the Agency, at the time of submission of each budget required by
Section 2.2.7 hereof to be submitted to the Agency for its review and approval, a written statement
reporting on the condition of the Garage and the equipment used in its operation. The Garage
Operator shall recommend the replacement, renewal or repair for equipment for which the Agency
is responsible. The Agency shall within sixty (60) days of the receipt of such report respond in
writing whether and on what schedule it intends to replace renew or repair said equipment or the
Garage.
Article 5 - Rates.
Section 5.1. Establishment of Parking Rates. The Agency, in its sole and absolute
discretion, shall establish parking rates, discounts and parking privileges with respect to the
Garage. Such rates may include reduced rate parking to employees, guests and others,
arrangements to accommodate car rental agencies and Hotel concessionaires and other special
circumstances. The Agency shall consult with Garage Operator in this regard, but the Agency's
decision shall be final in all respects.
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Article 6 - Employees.
Section 6.1. Personnel. Garage Operator shall provide all Garage Employees necessary, in
accordance with and subject to the Approved Budget, to achieve the efficient, safe, courteous, and
proper operation of the Garage in accordance with the requirements of this Agreement. All Garage
Employees shall be employees of Garage Operator, and shall be trained, hired, instructed,
supervised and directed by Garage Operator. Without limiting the foregoing, the number of Garage
Employees and their salaries and benefits shall be subject to the prior written approval of Agency.
Prior to hiring any Garage Employees, the Garage Operator shall conduct all appropriate screening
procedures, including, without limitation, drug testing and review of each person's driver's license
and record of violations. At either Hotel's request, all Garage Employees shall participate in any
Hotel-related training programs. In addition, as requested by either Hotel, the Garage Supervisor
shall attend Hotel staff meetings as may be necessary, in addition to attending the meeting
mandated by Section 3.2, so as to assure proper coordination of the Garage with the needs of each
Hotel. The Garage Operator shall use commercially reasonable efforts to employ, engage and
retain only persons who are competent, efficient, qualified and honest of reputation.
Section 6.2. On-Site Supervisor. Garage Operator's on-site Garage Supervisor shall be
subject to the priorwritten approval of the Agency.
Section 6.3. No Discrimination in Employment. Garage Operator agrees that it will not
discriminate upon the basis of race, creed, color, national origin or sex in the hiring of any Garage
Employees hereunder.
Section 6.4. Compliance with Laws and Regulations. Garage Operator shall comply in all
respect with all applicable laws and regulations relating to its employment of Garage Employees
including, without limitation, immigration and naturalization laws, worker's compensation laws, and
laws regulating wages, hours and working conditions.
Section 6.5. Conduct of Employees. Garage Employees shall at all times conduct
themselves in a courteous manner, have the ability to communicate with the public, be neat, clean
and properly uniformed, and conduct themselves in a manner consistent with the operation of
convention center hotels. As noted above, the manner in which the Garage is operated, including
the conduct of Garage Employees, is of great significance to Agency and Hotels. Accordingly, in
the event that the Agency or either Hotel objects to the performance or conduct of any Garage
Employee, based upon the complaint of a Hotel guest, Garage customer, or other sufficient
evidence, the Garage Operator shall review the matter and, if warranted, take appropriate action.
Section 6.6. Uniforms. Garage Operator shall, at the Agency's cost as provided in the
Approved Budget, provide uniforms for all Garage Employees, the design of which shall be subject
to the prior written approval of the Agency. The Garage Operator shall assure that all employees
are well-groomed and that their uniforms are clean and neatly pressed at all times. It shall be the
obligation of each Garage Employee to care for his or her uniform, and the Agency shall not be
responsible therefor, unless federal or state law requires the employer to pay for the cleaning of
such uniforms, in which case the cost of such cleaning shall be included in the Approved Budget.
All Garage Employees shall wear an identifying name tag.
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Section 6.7. Unions. To the extent applicable, Garage Operator shall, for its own account,
conduct all negotiations relating to any union purporting to represent Garage Employees, and
neither Agency nor either of the Hotels shall be a party to or liable under any collective bargaining
or similar agreement.
Article 7 - Books of Account.
Section 7.1. Accounting. Garage Operator shall, in accordance with good accounting practice
and in such form as the Agency shall require, keep such books of account and records as will
accurately and completely reflect all business done at, and all income received and expenses and
disbursements incurred in connection with the operation and maintenance of, the Garage. Such
books and records shall include individual parking tickets and receipts, consecutively numbered,
dated and time stamped for each vehicle parked at the Garage as well as all such books, records
and reports required to be maintained by any governmental authority. All such books, records and
reports shall be maintained at Garage Operator's office in Dade County, Florida and shall be
available for inspection, audit and copying by duly authorized representatives of the Agency from
time to time upon request. Garage Operator shall keep and preserve all such books and records
for a period of not less than five years, and shall not destroy or remove same without giving the
Agency prior written notice and right to take possession thereof.
Section 7.2. Monthly Statements. Not later than the tenth (10th) calendar day of each month,
Garage Operator shall deliver to the Agency a Monthly Statement with respect to the operation of
the Garage during the preceding month.
Section 7.3. Daily Reports. At least once each day, at such time or times the Agency shall
reasonably request, Garage Operator shall furnish the Agency and each Hotel a schedule showing
gross business for such day, and such other information as the Agency and each Hotel may
reasonably request.
Article 8 - Funds.
Section 8.1. Fiduciary Duty. Garage Operator acknowledges that in its capacity as Garage
Operator of the Garage it shall be acting in a fiduciary capacity with respect to the proper protection
of and accounting for funds and other assets of Agency.
Section 8.2. Ownership of Funds; No Set-Off. All monies and other things of value collected
by the Garage Operator in the operation of the Garage shall be immediately, upon receipt thereof,
the sole property of the Agency until distribution of the Management Fee as set forth in Article 11
hereof. The Garage Operator shall have no right of set-off against such monies for the
Management Fee or for any other amounts owed to it by the Agency.
Section 8.3. Interest on Amounts Due; Shortages. Any amounts not paid to the Agency or
deposited pursuant to Section 8.4 or any other provision hereof shall bear interest at the lesser of
fifteen percent (15%) per annum or the maximum amount permitted by law. In the event of any
shortages between monies collected and the Garage Operator's records, the Garage Operator
shall be responsible for making up the deficiency to the Agency.
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Section 8.4. Daily Deposit of Cash Receipts. At least once each day Garage Operator shall
cause all cash receipts of the Garage to be deposited in a bank account designated by the Agency,
in the name of the Agency, and shall deliver evidence of such deposit to Agency, to such employee
or agent of Agency and at such address as Agency shall from time to time determine. In order to
accomplish the foregoing, the Agency shall arrange with an armored car service to have such
deposits picked up from the Garage on a seven day a week basis, including holidays.
Article 9 - Reimbursement of Certain Expenditures.
Section 9.1. Reasonable Expenses. No amounts, other than those approved in writing by the
Agency, and included in the Approved Budget prepared in accordance with Section 2.2.7 hereof,
shall be reimbursed or advanced to the Garage Operator. The following out-of-pocket costs and
expenses reasonably and properly incurred by Garage Operator during the Term in the
performance of its obligations hereunder, in amounts not to exceed those approved by the Agency
in each Approved Budget prepared pursuant to Section 2.2.7 hereof, shall be either reimbursed to
Garage Operator or advanced to Garage Operator as provided in Section 9.2 below:
9.1.1. "Wages and Benefits", which term shall mean wages and salaries and related
payroll taxes, social security taxes, state disability insurance, workers
compensation, unemployment insurance, and medical insurance if applicable, for
the Garage Employees whose positions are listed in the Approved Budget, and
shall include such costs for participation in any training program required by
Agency or either Hotel.
9.1.2. "Insurance", which term shall mean premiums for insurance provided by Garage
Operator pursuant to Article 10 of this Agreement.
9.1.3. "Licenses and Permits", which term shall mean fees for licenses and permits
required in connection with the operation of the Facility in the ordinary course of
business.
9.1.4. "Operating Supplies", which term shall mean the reasonable and necessary cost
for paper supplies, parking tickets and other printed materials, cleaning materials,
light bulbs and other consumable and expendable items required in the operation
of the Garage in the ordinary course of business.
9.1.5. "Repair and Maintenance", which term shall mean the reasonable and necessary
cost and expense for the upkeep and maintenance of the Garage in the ordinary
course of business, including, without limitation, equipment service agreements,
painting, striping and degreasing. This term shall not include structural repairs
which will be performed by the Agency.
9.1.6. "Utilities", which term shall mean electricity, water, telephone and natural gas.
9.1.7. "Other Operating Expenses", which term shall mean such other reasonable and
necessary costs and expense set forth in the Approved Budget, for items
necessary to the operation of the Garage.
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In no event shall any reimbursed expense include any costs attributable to any employee
of Garage Operator other than Garage Employees, or to any legal, administrative, supervisory,
accounting, auditing or other overhead or home office costs incurred by Garage Operator.
Section 9.2. Advance of Payroll Costs and Premiums for Insurance. Upon written approval
of the Agency, payroll costs included within Wages and Benefits and premiums for Insurance
required pursuant to Article 10 hereof, and in accordance with the Approved Budget, shall be
advanced to Garage Operator (a) in the case of Wages and Benefits, one (1) business day in
advance of the applicable payroll date, subject to the prior receipt by the Agency of adequate
supporting data. and (b) in the case of Insurance premiums, fifteen (15) days prior to the date the
same become due and payable. All other amounts shall be reimbursed or advanced monthly
following submission by Garage Operator of the Monthly Statement, accompanied by bills or other
sufficient supporting documentation.
Section 9.3. Petty Cash Fund. The Garage Operator shall have a petty cash fund of Two
Hundred and Fifty Dollars ( $250.00), unless such amount shall be increased by the Agency in its
sole and absolute discretion, for emergency and unanticipated items necessary for the daily
operation of the Garage. The Garage Operator shall account for all expenditures made from the
petty cash fund and shall provide the Agency with receipts for all expenditures therefrom. Upon
receipt of a request for reimbursement, together with a proper accounting and receipts as
aforesaid, the Agency shall reimburse said petty cash fund for said expenditures. The Garage
Operator shall not request reimbursement more than once in each calendar month,
Section 9.4. Non-Affiliates to Supply Products and Services; Discounts. Except as
otherwise expressly approved by Agency, all products and services for which Garage Operator
requests advance or reimbursement pursuant to this Agreement shall be provided by independent
third parties who are not affiliated with Garage Operator. Garage Operator shall make available
to the Agency any quantity discounts, rebates or refunds available to it in connection with the
operation of its parking management business generally.
Article 10. -Insurance and Claims.
Section 10.1. Liability Insurance. At all times during the Term, the Agency, at its sole cost and
expense, shall carry or cause to be carried by the Garage Operator, insurance against liability with
respect to the Garage and the operations related thereto, whether conducted on or off the Garage
premises of not less than ten million dollars ($10,000,000) per occurrence (subject to adjustment
for inflation), combined single limit, with a deductible determined by the Agency, or not more than
$10,000 per occurrence, subject to adjustment for inflation and designating the Agency as a named
insured. In the event that the Agency requires, at its sole option, the Garage Operator to procure
such insurance, the Agency shall give written notice to the Garage Operator specifying the types
of coverage, policy limits and deductibles to be obtained, and the date on which such coverage
must be effective, and the Garage Operator shall thereafter obtain not less than three (3) bids for
such insurance from insurance companies that meet the requirements set forth in this Article 10,
and shall place such insurance with the company that provides the lowest overall premium to the
Agency. The insurance required under this Article 10 shall include the following:
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10.1.1. Garagekeeper's legal liability coverage in an amount not less than five million
dollars ($5,000,000) (subject to adjustment for inflation) per occurrence, with a
deductible determined by Owner, but not more than one hundred thousand dollars
($100,000) per loss, subject to adjustment for inflation; and (ii) automobile liability
insurance covering any automobile owned, not owned or hired in a amount not
less than ten million dollars ($10,000,000) (subject to adjustment for inflation) per
occurrence, with a deductible determined by Owner of not more than ten
thousand dollars ($10,000) per loss, subject to adjustment for inflation. Such
insurance shall meet all of the standards, limits, minimums and requirements
described in Section 7.7 of the Lease, a copy of which is attached hereto as
Exhibit A, and by this reference incorporated herein, except for the provisions
regarding Recognized Mortgagees and except that all determinations shall be
made by the Agency.
10.1.2. Workers' compensation insurance as required by law, including employers'
liability.
10.1.3. An excess liability, umbrella policy.
10.1.4. Fidelity insurance covering any dishonest or fraudulent act of the Garage
Operator and/or its employees whether acting alone or in collusion with others,
including robbery within the premises, with a limit (without deductible) of not less
than $5,000.00 per employee and $25,000 for robbery per month.
10.1.5. Such other insurance as the Agency may reasonably request provided such
insurance is commonly provided for hotel garage operations in the South Florida
area.
Section 10.2. General Provisions Applicable to All Policies.
10.2.1. Insurance Companies. All of the insurance policies required by this Article 11
shall be procured from companies licensed or authorized to do business in the
State of Florida that have a rating in the latest edition of "Best's Key Rating Guide"
of "AX" or better or another comparable rating acceptable to Agency, considering
market conditions.
10.2.2 Required Forms. All forms and coverages referred to in or required by this Article
10 shall be those used by the Insurance Services Organization (ISO) or
equivalent forms satisfactory to the Agency.
10.2.3. Reauired Certificates. Certificates of insurance evidencing the issuance of all
insurance required by this Article 10, describing the coverage and providing for
thirty (30) days prior notice to Agency by the insurance company of cancellation
or non-renewal, shall be delivered to the Agency, in the case of any policies
replacing or renewing any policies expiring during the Term, not later than thirty
(30) days before the expiration dates of any expiring policies. The certificates of
insurance shall be issued by or on behalf of the insurance company and shall bear
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the original signature of an officer or duly authorized agent having the authority
to issue the certificate. Garage Operator shall deliver to the Agency an entire
duplicate original or a copy (certified by Garage Operator to be true, complete and
correct) of each policy within a reasonable period of time after request therefor by
the Agency. Garage Operator shall notify the Agency of any material changes in
the coverage provided under any policy promptly after requesting an insurance
company to make such change or receiving any notice from an insurance
company advising Garage Operator of any such change; provided, however, that
no such change may reduce or otherwise modify the insurance coverage required
under this Agreement.
10.2.4. Required Insurance Policv Clauses. Each policy of insurance required to be
carried pursuant to the provisions of this Article 10 and each certificate issued by
or on behalf of the insurer shall contain (i) a provision stating substantially that no
act or omission of Garage Operator or the Agency (or any other Person) or any
use or occupation of the Garage for purposes more hazardous than are permitted
by the policy shall invalidate the policy as to the Agency or the Garage Operator
or affect or limit the obligation of the insurance company to pay to Agency or the
Garage Operator the amount of any loss sustained and that no act or omission
of the Agency or the Garage Operator shall invalidate the policy as to Agency or
the Garage Operator or affect or limit the obligation of the insurance company to
pay to Agency or the Garage Operator the amount of any loss; (ii) a written waiver
of the right of subrogation against all of the named insureds and additional
insureds, including the Agency and the Garage Operator or any other party
named in such policy, with respect to losses payable under such policy; (iii) with
respect to each policy of liability insurance, a clause designating the Agency and
the Garage Operator as additional insureds, (iv) with respect to each policy of
property insurance, a clause designating the Agency as a loss payee, as its
interests may appear, for losses in excess of $250,000, adjusted for inflation; (v)
an agreement by the insurer that such policy shall not be canceled, materially
modified, or denied renewal without at least thirty (30) days prior written notice to
the Agency and the Garage Operator, under a standard New York form of
mortgagee endorsement or its equivalent, specifically covering, without limitation,
cancellation or non-renewal for non-payment of premium; and (vi) any such
insurance coverage shall be primary, regardless of any other insurance carried
by the Garage Operator.
10.2.5. Separate Insurance. Garage Operator shall not carry separate liability or property
insurance concurrent in form or contributing in the event of loss with that required
by this Agreement to be furnished by Garage Operator, unless the Agency is
included therein as an additional insured with respect to liability or unless the
Agency is included therein as a loss payee with respect to property, as its interest
may appear, with loss payable as in this Agreement provided.
10.2.6. Duration of Policies. Garage Operator shall procure or cause to be procured
policies for all insurance required by any provision of this Agreement for periods
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of not less than one (1) year and shall procure renewals thereof from time to
time at least thirty (30) days before the expiration thereof.
10.2.7 Annual Aggregates. If there is imposed under any liability insurance policy
required hereunder an annual aggregate which is applicable to claims other than
products liability and completed operations, such an annual aggregate shall not
be less than two (2) times the per occurrence limit required for such insurance.
10.2.8. Waiver by Agency. Notwithstanding any other provision of this Agreement, (i)
upon request of the Garage Operator, the Agency shall execute all documents
and take all actions reasonably requested by the Garage Operator to waive the
rights of the Agency to receive the proceeds under any insurance policy
provided for hereunder, provided that such proceeds are applied in accordance
with this Agreement, and (ii) the Agency shall have the right to adjust any
insurance provided for hereunder.
10.2.9. No Representation as to Adeauacy of Coverage. The requirements set forth
herein with respect to the nature and amount of insurance coverage to be
maintained or caused to be maintained by Garage Operator hereunder shall not
constitute a representation or warranty by the Agency that such insurance is in
any respect adequate.
10.2.10. Blanket or Umbrella Policies. The insurance required to be carried by the
Garage Operator pursuant to the provisions of this Agreement may, at the
election of the Agency, be effected by blanket, wrap-up and/or umbrella policies
covering the Garage and other properties, provided such policies otherwise
comply with the provisions of this Agreement and allocate to the Garage the
specified coverage, including, without limitation, the specified coverage for all
insureds required to be named as insureds or additional insureds hereunder,
without possibility of reduction or coinsurance by reason of, or because of
damage to, any other properties named therein. If the insurance required by
this Agreement shall be effected by any such blanket or umbrella policies,
Garage Operator shall furnish to the Agency certificates of insurance and, upon
the request of the Agency, copies (certified by Garage Operator to be true,
complete and correct) of such policies together with schedules annexed thereto
setting forth the amount of insurance applicable to the Garage.
Section 10.3. Indemnification. Garage Operator shall indemnify and hold Agency harmless
from and against any and all loss, claim, cost, damage, liability and expense (including reasonable
attorney's fees) based upon the failure by Garage Operator to provide any of the insurance
required in writing by the Agency to be provided by the Garage Operator pursuant to Section 10.1
of this Agreement.
Section 10.4. Payment of Deductibles Under Insurance Policies. It is understood and
agreed that the Agency shall be responsible for the payment of deductibles under the insurance
policies required by this Article 10, and the indemnification provisions of Section 10.3 hereof shall
not be applicable thereto.
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Section 10.5. Unrelated Valet Operators. In the event that either or both of the Hotels use
valet parking services that are business entities other than the Garage Operator, the Agency shall
use its best efforts to require that such valet services name the Agency and the Garage Operator
as named insureds on their insurance policies with regard to their valet parking operations at the
Hotel(s).
Article 11 - Management Fee.
Section 11.1. Management Fee. In consideration of the services to be performed by the
Garage Operator hereunder, the Agency shall pay to the Garage Operator an annual Management
Fee of Forty Thousand Dollars ($40,000.00), payable in equal installments of Three Thousand
Three Hundred and Thirty-Three Dollars and Thirty Three Cents ($3,333.33) per month, in arrears,
payable on the last day of each month.
Article 12 - Term.
Section 12.1. Initial Term. The Term of this Agreement shall commence on the
Commencement Date fixed by the Agency upon at least forty-five (45) days prior written notice to
Garage Operator and shall continue, unless sooner terminated in accordance with the provisions
hereof, until midnight of the last day of the thirty-sixth (36th) month following the month in which the
Commencement Date occurs.
Section 12.2. Extension. In the sole and absolute discretion of the Agency, for any reason
or for no reason, the Term of this Agreement may be extended for one period of twelve (12)
months, and, in such case, the Agency shall provide at least sixty (60) days prior written notice of
such extension to the Garage Operator.
Section 12.3. Training of Employees Prior to Commencement Date. Notwithstanding
anything herein to the contrary, at the request of the Agency, Garage Operator will commence
training at the Garage for Garage Employees prior to the Commencement Date. Such training
shall be at the sole expense of the Agency, but in no event shall the expense of such training
exceed the amount set forth for such purpose in the first Approved Budget prepared pursuant to
Section 2.2 of this Agreement.
Article 13 - Default.
Section 13.1. Termination By Agency Upon Certain Events. This Agreement may be
terminated by Agency by written notice to Garage Operator upon the happening of anyone or more
of the following events:
13.1.1.
The failure by Garage Operator to remit or cause to be remitted the cash
proceeds of the Facility to the Agency as required in Section 8.4 hereof.
13.1.2.
The failure of Garage Operator to fulfill its obligations under this Agreement to
the reasonable satisfaction of the Agency and the continuance of such failure
for a period of fifteen (15) calendar days after written notice thereof by Agency.
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13.1.3.
13.1.4.
13.1.5.
13.1.6.
The failure of the Garage Operator to coordinate the valet and other parking
requirements of the Hotels in accordance with Section 3.2 hereof and the
continuance of such failure for a period of fifteen (15) calendar days after written
notice thereof by Agency.
Termination of the valet parking agreement between the Garage Operator and
either of the Hotels with cause, and other than at the expiration of a written
contract.
Garage Operator shall (a) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or liquidator of itself or of
all or a substantial part of its property, (b) admit in writing its inability, or
generally fail, to pay its debts as such debts become due, (c) make a general
assignment for the benefit of its creditors, (d) commence a voluntary case under
the Federal Bankruptcy Code (as now or hereafter in effect), (e) file a petition
seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, or (f) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to, any
petition filed against Garage Operator in an involuntary case under such
Bankruptcy Code.
A proceeding or case shall be commenced, without the application or consent
of Garage Operator in any court of competent jurisdiction, seeking (a) the
liquidation, reorganization, dissolution, winding-up, or composition or
readjustment of debts, of Garage Operator (b) the appointment of a trustee,
receiver, custodian, liquidator or the like of Garage Operator or of all or any
substantial part of its assets, (c) similar relief in respect of Garage Operator
under any law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed for a period of sixty (60) calendar days, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect for a period of sixty (60) calendar days, or an order for
relief against Garage Operator shall be entered in an involuntary case under
such Bankruptcy Code.
Section 13.2. Termination By Garage Operator. This Agreement may be terminated by
Garage Operator upon written notice to the Agency in the event of the failure of the Agency to
perform, keep or fulfill any of its obligations under this Agreement and the continuance of such
failure for a period of fifteen (15) calendar days after written notice thereof by Garage Operator.
Article 14 -Independent Contractor; Subordination.
Section 14.1. Independent Contractor; Agreement Subordinate. This Agreement is an
agreement for the provision of personal services and does not create, directly or indirectly on the
part of Garage Operator, any interest in or to the Garage or any interest in real property. The
parties acknowledge that Garage Operator is an independent contractor and not the agent,
employee or partner of Agency. Nothing in this Agreement shall constitute or be construed to be
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or create a partnership or joint venture, or be construed to create a lease, license or concession.
This Agreement is subject and subordinate to all underlying leases and to all mortgages and/or
bond covenants which may now or at any time hereafter affect the Garage. Garage Operator shall
not take any action which would violate any provision of any such lease, mortgage, bond covenant
or other agreement known to it which may now or hereafter affect the Garage.
Article 15 - Labor Matters.
Section 15.1. Garage Operator Responsible for Labor Relations. It is understood that the
Garage Operator is solely responsible for its labor relations. In the event that Garage Operator
becomes involved in a labor dispute and as a result thereof (i) the Garage is picketed or otherwise
subjected to a strike, walkout or material labor disturbance and/or (ii) the Facility picketed or
otherwise subjected to a strike, walkout or material labor disturbance; then, in either such case, the
Agency may require Garage Operator to cease doing business at the Garage and, if either
condition persists for more than five (5) days, then, in either such event, the Agency may terminate
this Agreement.
Article 16 - Hazardous Materials.
Section 16.1. Use of Hazardous Materials. Garage Operator shall not cause or permit any
Hazardous Materials (as defined in the Lease) to be brought on, kept or used in or about the
Garage, except as necessary or useful to the operation of the Garage and in compliance with all
Environmental Laws (as defined in the Lease).
Section 16.2. Compliance. The Garage Operator shall comply with all Environmental Laws
with respect to the use and operation of the Garage.
Section 16.3. Indemnification. Garage Operator hereby indemnifies and holds harmless the
Agency from and against any and all Environmental Damages (as defined in the Lease) resulting
from Environmental Conditions (as defined in the Lease) created by or resulting from the operation
of the Garage by the Garage Operator during or after the Term. This obligation shall include the
burden and expense of defending all claims, suits and administrative proceedings (with counsel
reasonably satisfactory to the Agency) and conducting all negotiations of any description, and
paying and discharging, when and as the same become due, any and all judgments, penalties or
other sums due against the Agency.
Section 16.4.
Agreement.
Survival. The provisions of this Article 16 shall survive the termination of this
Article 17 - Notices, Consent, etc.
Section 17.1. Notices Between Parties. All notices, requests, demands and other
communications between the parties hereto must be in writing and shall be deemed to have been
duly given if delivered by hand, sent by overnight delivery service, or mailed by first-class certified
mail, return receipt requested, postage and fees prepaid and addressed as follows:
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If to the Agency:
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Executive Director
with a copy to:
General Counsel
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miami Beach, Florida 33139
If to Garage Operator:
Mr. Jacob Sopher
Quik Park
425 East 61 st Street
New York, NY 10021
with a copy to:
Alberto Cardenas, Esq.
Tew Cardenas Rebak Kellogg Lehman
DeMaria & Tague, L.L.P.
201 South Biscayne Boulevard
Suite 2600
Miami, FL 33131
Section 17.2. Notices to Hotels. All notices, requests, demands and other communications
to either or both of the Hotels hereunder must be in writing and shall be deemed to have been duly
given if delivered by hand, sent by overnight delivery service, or mailed by first-class certified mail,
return receipt requested, postage and fees prepaid and addressed as follows:
If to Loews Miami Beach Hotel prior to the opening date:
MB Redevelopment, Inc.
407 Lincoln Road
Suite 6-K
Miami Beach, FL 33139
Attn: Mr. Eric Nesse
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If to Loews Miami Beach Hotel after the opening date:
MB Redevelopment, Inc.
c/o Loews Miami Beach Hotel
1601 Collins Avenue
Miami Beach, FL 33139
Attn: General Manager
In all cases with copies to:
Loews Hotels Holding Corporation
667 Madison Avenue
New York, NY 10021
Attn: Corporate Secretary
and
Hughes Hubbard & Reed
201 South Biscayne Boulevard
Suite 2500
Miami, FL 33131
Attn: William A. Weber, Esq.
If to the Royal Palm Crowne Plaza Hotel:
RDP Royal Palm Hotel Limited Partnership
c/o Peebles Atlantic Development Corporation
100 S.E. Second Street
Suite 4650
Miami Beach, FL 33131
Attn: R. Donahue Peebles, President
With copies to:
RDP Royal Palm Hotel Limited Partnership
c/o Peebles Atlantic Development Corporation
2600 Virginia Avenue, N.
Suite 606
Washington, DC 20037
Attn: S.P. Newell, Executive Vice President
and
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Holland & Knight LLP
701 Brickell Avenue
30th Floor
Miami, FL 33131
Attn: Stuart K. Hoffman, Esq.
Section 17.3. Change of Address. Any party hereto, or either of the Hotels, may change its
address for notices by notifying all other parties listed in this Article 17 of its new address in writing
and delivered by hand, sent by overnight delivery service, or mailed by first-class certified mail,
return receipt requested, postage and fees prepaid to their last addresses hereunder.
Article 18 - Limitation of Liability; No Conflict of Interest.
Section 18.1. Limitation of Liability. Garage Operator agrees that for so long as the Garage
is owned by the Agency, the covenants and obligations contained in this Agreement on the part of
the Agency shall be covenants and obligations of the Agency only and not of any member, official
or employee of the Agency individually. No member, official or employee of the Agency shall be
individually liable for breach of any covenant or obligation of the Agency and no recourse shall be
had against the assets of any member, official or employee of the Agency for payment of any
services due, or enforcement of any other relief, based upon any claim made by Garage Operator
for breach of any such covenant or obligation.
Section 18.2. No Conflict of Interest. Garage Operator represents and warrants that, to the
best of its actual knowledge, no member, official or employee of the Agency, or of the City of Miami
Beach, Florida, has any direct or indirect financial interest in this Agreement, nor has participated
in any decision relating to this Agreement that is prohibited by law. Garage Operator represents
and warrants that, to the best of its knowledge, no official, agent, employee or representative of the
Agency or the City of Miami Beach, Florida, has received any payment or other consideration for
the making of this Agreement, directly or indirectly from the Garage Operator. Garage Operator
represents and warrants that it has not paid or given, and will not payor give, any third person any
money or other consideration for obtaining this Agreement, other than the normal costs of
conducting business and costs of professional services, such as attorneys. Garage Operator
acknowledges that the Agency is relying upon the foregoing representations and warranties in
entering into this Agreement and would not enter into this Agreement absent the same.
Article 19 - Assignment; Subcontracts.
Section 19.1. No Assignment of Agreement; No Subcontracts. All of the terms of this
Agreement shall be binding upon the respective successors and assigns of the parties hereto and
shall inure to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns; provided, however, that Garage Operator shall not assign this Agreement
or any of its rights or obligations hereunder unless in each case it obtains the prior written consent
of the Agency, which may be granted or withheld in the Agency's sole and absolute discretion, with
or without reason. For the purpose of this Agreement, an assignment by Garage Operator shall
be deemed to include any change in the beneficial ownership of Garage Operator which results in
a majority of Garage Operator's capital stock of all classes not being owned beneficially by Mr.
Jacob Sopher or members of his immediate family. The Garage Operator shall not subcontract
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any part of its duties or responsibilities hereunder, unless in each case it obtains the prior written
consent of the Agency, which may be granted or withheld in the Agency's sole and absolute
discretion, with or without reason It is understood and agreed that in the event that the Agency
does permit the Garage Operator to subcontract any portion of its duties, the Garage Operator
shall use its best efforts to utilize the services of contractors or subcontractors who may supply the
goods or services needed through existing contracts or subcontracts with the Agency or the City
of Miami Beach, whenever it doing so would be economically advantageous to the Agency or said
City.
Article 20 - Miscellaneous.
Section 20.1. Successors and Assigns. The rights and liabilities created by this Agreement
shall extend to and bind the Garage Operator the Agency and each of their successors and
assigns.
Section 20.2. Governing Law. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of Florida, both substantive and remedial, without
regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this
Agreement shall be Dade County, Florida, if in state court, and the U.S. District Court, Southern
District of Florida, if in federal court.
Section 20.3. Remedies Cumulative. The remedies provided herein shall be deemed
cumulative and the exercise of one remedy shall not preclude the exercise of any other remedy
provided herein or available at law or in equity, nor shall the specification of remedies herein
exclude any rights or remedies at law or in equity.
Section 20.4. Severability. If any provision of this Agreement or the application thereof to
either party hereto or circumstance is, to any extent, finally determined by a court of competent
jurisdiction to be invalid and unenforceable, the remainder of this Agreement, and the application
of such provision to either party hereto or circumstance other than those to which it is held invalid
and unenforceable, shall not be affected thereby and each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
Section 20.5. No Recording in Public Records. Garage Operator shall not record this
Agreement or any memorandum hereof in the public records without the prior written consent of
the Agency, which may be granted or withheld in the sole and absolute discretion, with or without
cause, of the Agency.
Section 20.6. No Continuing Waiver. Waiver of any breach of any of the provisions hereof
shall not be deemed a waiver of any other provisions hereof and such provisions shall remain in
full force and effect.
Section 20.7. Table of Contents and Headings. The table of contents and headings of this
Agreement are for purposes of convenience of reference only and shall not limit or otherwise affect
the meaning of any of the terms hereof.
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Section 20.8. No Waiver of Police or Governmental Power. Nothing in this Agreement or
in any parties' acts or omissions in connection herewith shall be deemed in any manner to waive,
impair, limit or otherwise affect the authority of the Agency in the discharge of its police or
governmental power.
Section 20.9. Time of Essence. Time is of the essence in the performance of the Garage
Operator's duties and obligations under this Agreement.
Section 20.10. Interpretation. The words "hereof," "hereto," "hereunder," and similar
expressions used in this Agreement relate to the whole of this Agreement and not only to the
provisions in which such expressions appear. This Agreement shall be read with all changes in
number and gender as may be appropriate or required by the context. Any reference to the
Garage Operator includes, when the context allows, the employees, agents and licensees of the
Garage Operator, and all other over whom the Garage Operator might reasonably be expected to
exercise control. This Agreement has been fully reviewed and negotiated by each party hereto and
its legal counsel and shall not be more strictly construed against either party.
Section 20.11. Entire Agreement; No Amendments. This Agreement embodies the entire
agreement and understanding between the Agency and Garage Operator and supersedes all prior
agreements and understandings relating to the subject matter hereof, and there are no other
agreements or understandings between them. This Agreement may not be modified or amended
or any term or provision hereof waived or discharged except in writing, signed by the party against
whom such amendment, modification, waiver or discharge is sought to be enforced.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
[SEAL]
Attest:
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[SEAL]
~d~
Robert Parcher
Secretary
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:~ami Beaile'op~ntAgenq
Niesen O. Kasdin
Chairman
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
~If& /J-:-
ianfi Beach
Redevelopment Agency
1(t7/~ ~
Date
23
Index of Defined Terms
Page
Agency ................................................................... 1
Agreement . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Approved Budget ........................................................... 1
Commencement Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Crowne Plaza Garage Easement Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Crowne Plaza Hotel ......................................................... 2
Environmental Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Environmental Laws ........................................................ 17
Fiscal Year ................................................................ 2
Garage ................................................................... 2
Garage Easement Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Garage Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Garage Operator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Garage Supervisor .......................................................... 2
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . 17
Insurance ................................................................ 10
Lease ..........................................................,......... 2
Licenses and Permits ....................................................... 10
Loews Garage Easement Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Loews Hotel ............................................................... 2
Management Fee ........................................................... 2
M B Redevelopment ......................................................... 2
Monthly Statement .......................................................... 3
Operating Supplies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Other Operating Expenses ..............................................,.... 10
Permitted Users ............................................................ 3
RDP ..................................................................... 3
Repair and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Revenue . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Utilities .................................................................. 1 0
Wages and Benefits ........................................................ 1 0
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