Garage Easement Estoppel Cert.
GARAGE EASEMENT AGREEMENT ESTOPPEL CERTIFICATE
Royal Palm Hotel Property, LLC
The Falor Companies, Inc.
8609 W. Bryn Mawr Ave.
Suite 209
Chicago, Illinois 60631
Re: Garage Easement Agreement by and between Miami Beach Redevelopment Agency
("Owner") and RDP Royal Palm Hotel Limited Partnership ("Grantee"), dated
May 28, 1998, recorded in Official Records Book 18170, Page 1082, in the Public
Records of Broward County, Florida, as aIllended by Amendment to Garage
Easement Agreement, dated n-M.li:;t I.(,~gbe recorded in the Public Records of
Miami-Dade County, Florida (collect vely, the "Easement Agreement")
The undersigned, the duly elected and acting Chairman of the Miami Beach
Redevelopment Agency (the "Owner"), hereby certifies the statements set forth below to Royal
Palm Hotel Property, LLC and its successors and assigns (collectively, "RPHP") with the
understanding that RPHP is authorized to rely on the statements hereinafter made in connection
with the acquisition by RPHP from Grantee of that certain real property known as the Royal Palm
Crown Plaza and Shorecrest Hotel located at 1525-1545 Collins Avenue, Miami, Florida, more
particularly described in Exhibit "A" attached hereto and made a part hereof (collectively, the
"Property"). Any term not otherwise defined herein shall have the meaning ascribed to such term in
the Easement Agreement. Accordingly, the undersigned hereby certifies to RPHP, to RPHP's
lender, and to Grantee with respect to the Easement Agreement as of the date hereof as follows:
1. The Easement Agreement is in full force and effect and has not been assigned,
modified, supplemented or amended except as set forth above.
2. Attached hereto as Exhibit "B" is a true and correct copy of the Garage
Management Agreement. The Garage Management Agreement expired on December 31, 2002, and
was extended on a month to month term pursuant to City of Miami Beach Resolution No. 435-2002,
attached hereto as Exhibit "C". The Garage Management Agreement terminated on June 9, 2002.
There is no Garage Management Agreement in force and effect.
3. Notwithstanding Paragraph 2 above, following expiration and termination of the
Garage Management Agreement, Owner designated the City of Miami Beach Parking Department
as the Garage Operator, and as contemplated under Section 5(a) of the Easement Agreement. As
required under Section 5(a) of the Easement Agreement, Grantee has approved of the Garage
Operator designated by Owner, and Garage Operator is continuing to manage and operate the
Garage as of the date hereof.
4. There are no past due Use Fees or Facility Usage Payments under the Easem nt
Agreement.
Royal Palm Hotel Property, LLC
Page 2
5. Owner is not in default under the Easement Agreement, and to the actual knowledge
(but without independent inquiry) of the undersigned, no event has occurred or circumstance exists
which, with the giving of notice or the passage of time, or both, presently constitutes an event of
default by Owner under the Easement Agreement. Notwithstanding the foregoing, Owner does not
waive any default or claim not currently known to Owner or which arises after the date hereof.
6. To the actual knowledge (but without independent inquiry) of the undersigned, the
Grantee is not in default of any of its obligations under the Easement Agreement, and no event has
occurred or circumstance exists which, with the giving of notice or the passage of time, or both,
presently constitutes an event of default by Grantee under the Easement Agreement.
Notwithstanding the foregoing, Owner does not waive any default or claim not currently known to
Owner or which arises after the date hereof.
The statements contained herein are made as of JiRilllJ1l1Y I~-, 2005.
Sincerely yours,
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
}.AJIM.O~.IJ. ;)--""'05
~ Date
General Couns~~
2
EXHIBIT" A"
Description of the Property
EXHIBIT A
DESCRIPTION OF THE LAND
RP LAND
The South 12.65 feet (measured along the lot line) of Lots 7 and 14, all of
Lots 6 and 15 and the North 10.0 feet (measured along the lot line) of Lots
5 and 16, all in Block 56, of FISHER=S FIRST SUBDIVISION OF ALTON
BEACH, according to the plat thereof, as recorded in Plat Book 2, at Page
77, of the Public Records of Dade County, Florida, together with that
certain parcel of land lying East and adjacent to the above described
parcel; said parcel bounded on the South by the South line of the above
described parcel extended Easterly; bounded on the North by the North
line of the above described parcel extended Easterly; bounded on the
East by the Erosion Control Line of the Atlantic Ocean and bounded on
the West by the East line of the above mentioned Block 56.
SHORECREST LAND
The South 40.00 feet (measured along the lot line) of Lots 5 and 16 and
the North one-half of Lots 4 and 17, all in Block 56, of FISHER=S FIRST
SUBDIVISION OF ALTON BEACH, according to the plat thereof, as
recorded in Plat Book 2, at Page 77, of the Public Records of Dade
County, Florida, together with that certain parcel of land lying East and
adjacent to the above described parcel; said parcel bounded on the South
by the South line of the above described parcel extended Easterly;
bounded on the North by the North line of the above described parcel
extended Easterly; bounded on the East by the Erosion Control Line of
the Atlantic Ocean and bounded on the West by the East line of the
above mentioned Block 56.
All lands described above located, lying and being in Section 34, Township 53 South,
Range 42 East, in the City of Miami Beach, Dade County, Florida.
EXHIBIT "B"
Garage Management Agreement
J ..:
Bft: 18170r~ I 082
GARAGE EASEMENT AGREEMENT
98R319187 1998 JUl 01 13:3
between
MIAMI BEACH REDEVELOPMENT AGENCY,
Owner
and
RDP ROYAL PALM HOTEL LIMITED PARTNERSHIP,
Grantee
Dated as of ~, 1998
PREPARED BY:
Alexander I. Tachmes, Esq.
Alexander I. Tachmes, P.A.
777 Arthur Godfrey Road
2nd Floor
Miami Beach, Florida 33140
RECORD AND RETURN TO:
Stuart K. Hoffman, Esq.
Hol/and & Knight LLP
701 Brickell Avenue
Thirtieth Floor
Miami, Florida 33131
'"
"'"
j.
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V
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(9 /"".
~t: 18170r~'083
TABLE OF CONTENTS
RECITALS
. ... . . ......... ...... ...................... ...... . ...... .
1
1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
2.
GRANT OF EASEMENTS ..................................
8
3.
TERM. ... ............. ...... .............. .............
9
4.
USE FEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
(a) Use Fee ............. .~. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9
(b) Facility Usage Payment ................ . . . . . . . . . . . . . .. 9
(c) Minimum Facility Usage Payment ...................... 10
(d) Gross Parking Revenues ........ . . . . . . . . . . . . . . . . . . . . .. 10
(e) Payment Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
5. GARAGE OPERATIONS ................................... 11
(a) Garage Operator .................................... 11
(b) Garage Management Agreement. . . . . . . . . . . . . . . . . . . . . . .. 11
(c) Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
(d) Hours and Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
(e) Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
(1) MB Redevelopment, Inc. Garage Easement Agreement . " . .. 12
(g) Manner of Providing Priority Use of Parking Spaces ......... 12
6. USE OF GARAGE ........................................ 12
(a) Grantee Use. ....................................... 12
(b) Owner Use. ........................................ 12
(c) Charges for Garage. ................................. 13
(d) Preference.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
(e) Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
(1) Allocation of Parking Spaces ........................ . .. 13
7. OWNER'S COVENANTS AND OBLIGATIONS. ................. 13
(a) Use.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
(b) Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
(c) Compatibility to Hotel ........................... . . . . .. 14
i
Rft: 1817mb I 084
(d) Maintenance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 14
(e) Equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 14
(f) Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
(g) Substitute Parking. ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
(h) Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 16
(i) Alterations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
0) Height . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 16
8. FINANCIAL REPORTS AND RECORDS . . . . . . . . . . . . . . . . . . . . . .. 16
(a) Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16
(b) Audit Results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17
(c) Gross Parking Revenues Statements. ...... . . . . . . . . . . . . .. 17
(d) Survival.. . . . . . . . . . . . . .~. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
9. DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
(a) Grantee Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
(b) Termination of Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 18
(c) Owner Default. ................. . . . . . . . . . . . . . . . . . . . .. 18
(d) Right to Perform the Other Party's Covenants. ............. 19
(e) Cross-Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20
10. NOTICE AND RIGHT TO CURE GRANTEE'S DEFAULTS. ........ 21
(a) Notice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
(b) Cure Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
(c) Acceptance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
(d) Payments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
(e) Priority.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
(f) No Surrender or Modification ........................... 22
11. FACILITY MORTGAGES; NOTICE AND RIGHT TO CURE
SUCCESSOR OWNER'S DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . .. 23
(a) Right to Mortgage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23
(b) Facility Permitted Debt. ............................... 23
(c) Facility Mortgagee's Rights Not Greater than Owner's. . . . . . .. 24
(d) Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
(e) Cure Right. '" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
(f) Acceptance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
(g) Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 25
(h) No Surrender or Modification ........................ . .. 25
ii
~g: 1817Gro I 085
(i) Grantee's Self-Help Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . " 26
U) Application of Proceeds from Insurance or
Condemnation Awards. ............................. 26
(k) Appearance at Condemnation Proceedings . . . . . . . . . . . . . . " 26
(I) Rights Limited to Facility Mortgagees. .................... 26
(m) Facility Mortgagee's Assignment Rights. . . . . . . . . . . . . . . . . .. 27
12. DAMAGE, DESTRUCTION AND RESTORATION. " .. ........... 28
(a) Notice to Grantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28
(b) Obligation to Restore ................................. 28
(c) Commencement of Construction Work. . . . . . . . . . . . . . . . . . .. 28
(d) Effect of Casualty on this Agreement. . . . . . . . . . . . . . . . . . . .. 28
(e) Restoration Funds with respect to a Successor Owner .... . .. 29
13. CONDEMNATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30
(a) Substantial Taking ................................... 30
(b) Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 31
(c) Less than a Substantial Taking ......................... 31
(d) Obligation to Restore the Garage. . . . . . . . . . . . . . . . . . . . . . .. 32
(e) Commencement of Construction Work. . . . . . . . . . . . . . . . . . .. 32
(f) Temporary Taking ................................... 32
(9) Intention of Parties ............... . . . . . . . . . . . . . . . . . . .. 32
(h) Restoration Funds ................................... 33
14. INSURANCE REQUIREMENTS. ............................. 34
(a) Liability Insurance. ................................... 34
(b) Property Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 35
(c) Other Insurance ..................................... 35
(d) Construction Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 36
(e) General Provisions Applicable to All Policies. . . . . . . . . . . . . .. 36
(f) No Representation as to Adequacy of Coverage . . . . . . . . . . .. 38
(g) Blanket or Umbrella Policies. . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
(h) Subleases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
(i) Grantee Fee Mortgagees .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
15. NO PARTNERSHIP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
16. NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
(a) In Writing .......................................... 39
iii
~~f: r8170r~ r086
(b) Effectiveness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41
(c) References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41
(d) Effect of Granting or Failure to Grant Approvals or Consents .. 41
(e) Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41
17. LIABILITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 42
(a)
(b)
(c)
(d)
(e)
(f)
Limitation on Liability of Owner and the City ............... 42
Owner Exculpation ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 42
No Waiver of Limitation on Liability ...................... 42
Limitation on Grantee Liability .......................... 42
Grantee Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
No Punitive Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
.
18. HAZARDOUS MATERIALS. .. ................. . ............ 43
(a) Use of Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
(b) Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
(c) Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
(d) Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
19. INDEMNIFICATION AND DEFENSE OF CLAIM..... ............ 43
. (a) Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
(b) Contractual Liability .................................. 44
(c) Defense of Claim, Etc. ................................ 45
(d) Notification and Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(e) Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 46
20. INVALIDITY OF CERTAIN PROViSiONS...................... 46
21. EASEMENT AND COVENANTS RUN WITH LAND .............. 46
22. NO THIRD PARTY BENEFICIARY. . . . . . . . . . . . . . . . . . . . . . . . . . .. 46
23. APPLICABLE LAW ....................................... 46
24. ENTIRE AGREEMENT; NO WAIVER ......................... 47
25. RECORDATION......... . ................................ 47
26. ADDITIONAL PHASE OF FACILITY .................... . . . . .. 47
iv
~fb: 1817DrG I 087
27. TERMS DEFINED IN ANOTHER AGREEMENT ................. 47
28. REFERENCES. .. .. .... . .. . .. . . . ... . .. . . . . . . . .. . . . . . . " .. 47
(a) Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47
(b) Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47
(c) Reference to Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 48
(d) Agency's and City's Governmental Capacity ............... 48
(e) Reference to "herein", "hereunder", etc. . . . . . . . . . . . . . . . . .. 48
29. REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 48
30. PERFORMANCE AT EACH PARTY'S SOLE COST AND
EXPENSE . . . . . . . . . . . . . . . . . .~. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 48
31. CORPORATE OBLIGATIONS... .. .... . '" . . . .. .. . .. . .. . .. .. 48
32. NONLlABILlTY OF OFFICIALS AND EMPLOYEES . . . . . . . . . . . . .. 49
33. CONFLICT OF INTEREST .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 49
34. TIME PERIODS .......................................... 50
35. INFLATION ADJUSTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 50
36. LATE CHARGES ......................................... 50
EXHIBITS
Exhibit A
Exhibit B
Exhibit 1
Exhibit 2
Exhibit 5(a)
Exhibit 5(e)
Exhibit 6(t)
Legal Description of Grantee Land ................. 53
Legal Description of Land ........................ 54
List of Project Agreements ....................... 55
Floor Plans. . . . . . . . . . . . . . . . . . .'. . . . . . . . . . . . . . . .. 56
List of Garage Operators . . . . . . . . . . . . . . . . . . . . . . . .. 57
Standards of Quality and Operation for Garage ....... 58
Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 59
v
~t~: \ 8 \ 7Gf~ \ 008
GARAGE EASEMENT AGREEMENT
THIS GARAGE EASEMENT AGREEMENT (the "Agreement") is made and entered
into as of the ~day of k~ ,1998 by and between RDP Royal Palm Hotel
limited Partnership, a Florida Imlted partnership, Its successors and/or assigns
("Grantee"), and the Miami Beach Redevelopment Agency (the "Agency"), a Florida public
body corporate and politic, and its successors and/or assigns.
RECITALS
A. The Agency and Grantee have entered into that certain Agreement of Lease
(the "Lease") of even date herewith, pursuant to which, among other things, Grantee has
agreed to own and operate a first class convention center hotel (the "Hotel") in accordance
with the terms thereof on the land described therein (the "Grantee Land"), and as more
particularly described on Exhibit A attached hereto and incorporated herein; and the
Agency has agreed to cause the construction of the Facility (as hereinafter defined).
8. The Agency and St. Moritz Hotel Corp., a Florida corporation ("SMHC"), have
entered into that certain Garage Development Agreement (the "Garage Development
Agreement"), pursuant to which SMHC has agreed to develop on the Agency's behalf a
facility (the "Facility") containing a municipal parking garage and appurtenances containing
approximately eight hundred and three (803) parking spaces (the "Garage") and certain
retail space (the "Retail Space") located in an area bounded by Washington and Collins
Avenues in the proximity of 16th Street, City of Miami Beach, Metropolitan Dade County,
Florida, as more particularly described on Exhibit B attached hereto and incorporated
herein (the "Land").
C. In connection with the operation of the Hotel, Grantee requires the use of
parking spaces at the Garage.
D. The Agency desires to grant Grantee an easement over the Land and the
Facility (other than the Retail Space) in order to provide to Grantee such parking spaces
and access, ingress and egress for pedestrian and vehicular passage and traffic upon and
subject to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the payment of ten ($10.00) dollars, the
mutual covenants and payments hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto intending to be legally bound, agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, the terms defined in this
Section 1 shall have the following meanings and the other provisions of this Section 1
shall apply:
~t~: 1817or~ I 089
"Affiliate" shall mean, with respect to any Person, any other Person that, directly
or indirectly, through one or more intermediaries, controls or is controlled by, or is under
common control with, such Person. For the purposes hereof, the term "control" (including
the terms "controlled by" and "under common control with") shall mean the possession of
a Controlling Interest.
"Building Index" has the meaning provided in Section 14.
"Casualty Restoration" has the meaning in Section 12.
"City" means the City of Miami Beach, a Florida municipal corporation.
"Commencement Date" has the meaning provided in Section 3.
~
"Condemnation Restoration" has the meaning in Section 13.
"Construction Plans" has the meaning provided in the Garage Development
Agreement.
"Controlling Interest" means the ownership of greater than 50% of the voting
ownership interests in a Person or the ownership of greater than 50% of the votes
necessary to elect a majority of the Board of Directors or other governing body of such
Person.
"Date of Taking" has the meaning provided in Section 13.
"Designee" has the meaning provided in Section 11.
"Development Drawings" has the meaning provided in the Garage Development
Agreement.
"Easement" has the meaning provided in Section 2.
"Equity Interest" means, with respect to any entity, (1) the legal (other than as a
nominee) or beneficial ownership of outstanding voting or non-voting stock of such entity
if such entity is a business corporation, a real estate investment trust or a similar entity, (2)
the legal (other than as a nominee) or beneficial ownership of any partnership, membership
or other voting or non-voting ownership interest in a partnership, joint venture, limited
liability company or similar entity, (3) a legal (other than as a nominee) or beneficial voting
or non-voting interest in a trust if such entity is a trust and (4) any other voting or non-voting
interest that is the functional equivalent of any of the foregoing.
2
~t~: 18170rn I 090
"Excess Parking Spaces" shall mean the number of Parking Spaces in the Facility
equal to the excess, if any, of (x) the total number of Parking Spaces in the Facility over
(y) the sum of the Parking Spaces with respect to which MB Redevelopment, Inc. and
Grantee are entitled to have Priority Use under the MB Redevelopment, Inc. Garage
Easement Agreement and this Agreement, respectively, as each agreement may be
amended and to the extent each agreement is in effect.
"Excess Usage Payment Amount" has the meaning provided in Section 4.
"Facility" has the meaning provided in the Recitals.
"Facility Usage Payment" has the meaning provided in Section 4.
"Facility Mortgage" means a Mortgage (i) that is held by a Person (other than an
Affiliate of a Successor Owner, except as provided below) which is an Institutional Lender,
(ii) which expressly provides that it is subject and subordinate to the Easement and to the
terms of this Agreement, (iii) that is in a principal amount not more than the then Facility
Permitted Debt and (iv) a photostatic copy of which is, following the execution and delivery
thereof, delivered to Grantee, together with a certification by Owner confirming that the
photostatic copy is a true copy of the Mortgage and a certification by the Facility Mortgagee
thereunder confirming the address of such Facility Mortgagee for Notices. Notwithstanding
anything contained herein to the contrary, an Affiliate of a Successor Owner may be part
of a lending group constituting a Facility Mortgagee for so long as such Affiliate (i) does not
own more than a forty-nine (49%) percent beneficial interest in the debt held by such
Facility Mortgagee with respect to Owner or the Facility Premises and (ii) is not the lead
lender or agent for the lending group. Grantee shall, within ten (10) days after receipt of
a Facility Mortgage, execute an instrument acknowledging such receipt of such Facility
Mortgage; provided, however, that Grantee's failure to execute such an instrument shall
not affect the status or validity of the Facility Mortgage or the rights of the Facility
Mortgagee.
"Facility Mortgagee" means the holder of a Facility Mortgage; provided, however,
that a Facility Mortgagee may not be an Affiliate of Owner (except if Owner is an Affiliate
of a Facility Mortgagee that has caused the Facility Premises to be transferred to such
Affiliate in lieu of the foreclosure of the Facility Mortgage of such Facility Mortgagee).
"Facility Permitted Debt" has the meaning provided in Section 11.
"Facility Premises" means, collectively, the Facility and the Land.
"Fiscal Year" shall mean a twelve (12) month period commencing on October 1 and
ending on September 30.
3
m: 18170fb I 09 I
"Foreclosure Transfer" has the meaning provided in Section 11.
"Foreclosure Transferee" has the meaning provided in Section 11.
"Garage" has the meaning provided in the Recitals.
"Garage Development Agreement" has the meaning provided in the Recitals.
"Garage Management Agreement" has the meaning provided in Section 5.
"Garage Operator" has the meaning provided in Section 5.
"GDP Implicit Price Deflator Index" means the implicit price deflator index for
gross domestic product as published by the U.S.~Department of Commerce (1987 = 100),
or any successor index thereto, appropriately adjusted.
"Governmental Authorities" means the United States of America, the State of
Florida, the City, Metropolitan Dade County, the Agency (in its governmental as opposed
to proprietary capacity) and any agency, department, commission, board, bureau,
instrumentality or political subdivision (including any county or district) of any of the
foregoing, now existing or hereafter created, having jurisdiction over Owner or over or
under the Facility Premises or any portion thereof or any street, road, avenue or sidewalk
comprising a part of, or in front of, the Facility Premises, or any vault in or under the Facility
Premises, or airspace over the Facility Premises.
"Grantee Indemnified Parties" shall mean Grantee and its directors, officers,
shareholders, employees, successors, assigns, subtenants, agents, contractors,
subcontractors, experts, licensees, lessees, mortgagees, joint venturers, members,
partners of a partnership constituting a partner of Grantee, trustees, partners, principals,
invitees and Affiliates.
"Grantee's Lien" shall have the meaning in Section 9.
"Grantee Land" has the meaning provided in the Recitals.
"Gross Parking Revenues" has the meaning provided in Section 4.
"Gross Parking Revenues Statemenf' has the meaning provided in Section 8.
"Hotel" has the meaning provided in the Recitals.
"Hotel Development Agreement" means that certain Hotel Development
Agreement entered into on the date hereof between the Agency and Grantee regarding
the development, construction, furnishing and equipping of the Hotel.
4
m: 1817Drbl09Z
"Hotel Management Agreemenf' means a written agreement between Grantee and
Hotel Manager pursuant to which Hotel Manager has agreed to manage and operate the
Hotel in accordance with the terms thereof, and any replacements, substitutions,
restatements or modifications thereof.
"Hotel Manager" means Holiday Hospitality Corporation, a Delaware corporation,
engaged by Grantee to manage and operate the Hotel, or any successor, substitute or
assign thereof permitted by the terms of the Lease.
"Hotel Opening Date" means the date on which the Hotel is opened to the public
for business in accordance with the Hotel Management Agreement, but not later than the
date that is thirty (30) days following the date of "Substantial Completion" of the Hotel as
that term is defined in the Hotel Development Agreement.
~
"Institutional lender" means a Person which, at the time it becomes an
Institutional Lender, is a state or federally chartered savings bank, savings and loan
association, credit union, commercial bank or trust company or a foreign banking institution
(in each case whether acting individually or in a fiduciary or representative (such as an
agency) capacity); an insurance company organized and existing under the laws of the
United States or any state thereof or a foreign insurance company (in each case whether
acting individually or in a fiduciary or representative (such as an agency) capacity); an
institutional investor such as a publicly held real estate investment trust, an entity that
qualifies as a "REMIC" under the Code or other public or private investment entity (in each
case whether acting as principal or agent); a brokerage or investment banking organization
(in each case whether acting individually or in a fiduciary or representative (such as an
agency) capacity) as principal or agent); an employees' welfare, benefit, pension or
retirement fund; an institutional leasing company; a financing subsidiary or division of a
New York Stock Exchange listed company; any governmental agency or entity insured by
a governmental agency or any combination of Institutional Lenders; provided that each of
the above entities shall qualify as an Institutional Lender only if (at the time it becomes an
Institutional Lender) it shall (y) have assets of not less than $100,000,000 adjusted for
inflation and (z) not be an Affiliate of the Agency or any Successor Owner (it being further
agreed that none of the standards set forth in this definition shall be applicable to
participants or co-lenders in a loan secured by a Mortgage which is held by an Institutional
Lender (whether acting individually or in a fiduciary or representative (such as an agency)
capacity). The term "Institutional Lender" also includes an Affiliate of an Institutional
Lender as described in this paragraph.
"land" shall have the meaning provided in the Recitals.
"late Charge Rate" shall mean interest at a rate equal to the lesser of (i) four
percent (4%) per annum in excess of the prime rate in effect from time to time at Citibank,
NA (or The Chase Manhattan Bank, N.A., ifCitibank, N.A. shall not then have established
5
~ft: 1817or~ I 093
a prime rate; or the prime rate of any major banking institution doing business in New York
City, as selected by Owner, if none of the aforementioned banks shall be in existence or
have established a prime rate), and (ii) the maximum interest rate permitted by law.
"Lease" has the meaning provided in the Recitals.
"MB Redevelopment, Inc." means MB Redevelopment, Inc., a Florida corporation,
its successors and/or assigns.
"MB Redevelopment, Inc. Garage Easement Agreement" means that certain
Garage Easement Agreement, as same may be amended, dated as of September 20,
1996, by and between the Agency and MB Redevelopment, Inc., relating to the Facility
Premises.
"Mortgage" means any mortgage or deed of trust, and all extensions, spreaders,
splitters, consolidations, restatements, replacements, modifications and amendments
thereof, that constitutes a lien on all or a portion of the Facility Premises and any security
interest in or assignment of the rents, issues or profits related thereto.
"Net Insurance Proceeds" has the meaning in Section 12.
"New Tenant's Documents" has the meaning provided in the Lease.
"Notice" shall have the meaning provided in Section 16.
"Notice of Facility Failure to Cure" has the meaning provided in Section 11.
"Notice of Failure to Cure" shall have the meaning in Section 10.
"Owner" means the Agency (or the City, or any instrumentality of the Agency or the
City, if the City or any such instrumentality shall succeed to the interest of the Agency
hereunder), acting in its proprietary capacity, or any Successor Owner, and any assignee
of the Agency (or the City, or any instrumentality of the Agency or the City, if the City or any
such instrumentality shall succeed to the interest of the Agency hereunder) or any
Successor Owner of its interest in the Facility Premises and this Agreement, from and after
the date of the assignment or transfer pursuant to which such interests were assigned or
transferred to such assignee or transferee.
"Owner Indemnified Parties" shall mean, collectively, the Agency, the City, any
Successor Owner and their respective elected and appointed officials (including, without
limitation, the Agency's Chairman and Members and the City's Mayor and City
Commissioners), directors, officials, officers, shareholders, members, partners, employees,
successors, assigns, agents, contractors, subcontractors, experts, licensees, lessees,
6
~tt: I B 170rD I 094
mortgagees, trustees, joint venturers, partners, partners of a partnership constituting a
partner of the owner of the Facility, trustees, principals, invitees and Affiliates.
"Owner Indemnified Party" shall mean any of the foregoing.
"Parking Space" has the meaning provided in Section 2.
"Partial Taking" has the meaning in Section 13.
"Permitted Users" has the meaning provided in Section 2.
"Person" means an individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, estate, trust, unincorporated association or other
entity; any Federal, state, county or municipal tJovernment or any bureau, department,
political subdivision or agency thereof; and any fiduciary acting in such capacity on behalf
of any of the foregoing.
"Priority Use" refers to the sole use of one or more Parking Spaces in the Garage,
subject to the terms of this Agreement or, where applicable to MB Redevelopment, Inc.,
subject to the terms of the MB Redevelopment, Inc. Garage Easement Agreement.
"Project Agreements" means those certain agreements, dated as of the date
hereof, between Grantee and the Agency and/or the City, and which are listed on Exhibit
1, which is attached hereto and incorporated herein.
"Recognized Accounting Firm" means Ernst & Young/Kenneth Leventhal;
Coopers & Lybrand; Arthur Andersen; Price Waterhouse; Deloitte & Touche; KPMG Peat
Marwick; Pannell, Kerr & Foster; or any successor entity of any of the foregoing or any
other national certified public accountants mutually acceptable to Owner and Grantee.
"Recognized Mortgage" has the meaning provided in the Lease.
"Recognized Mortgagee" has the meaning provided in the Lease.
"Recognized Mortgagee Designee" has the meaning provided to the term
"Designee" in the Lease.
"Recognized Mortgagee Foreclosure Transferee" has the meaning provided to
the term "Foreclosure Transferee" in the Lease.
"Replacement Value" has the meaning provided in Section 14.
7
m: 18170rb I 095
"Requirements" means: (i) any and all laws, rules, regulations, constitutions,
orders, ordinances, charters, statutes, codes, executive orders and requirements of all
Governmental Authorities having jurisdiction over Owner and/or the Facility Premises or
any street, road, avenue or sidewalk comprising a part of, or lying in front of, the Facility
Premises or any vault in, or under the Facility Premises (including, without limitation, any
of the foregoing relating to handicapped access or parking, the Building Code of the City
and the laws, rules, regulations, orders, ordinances, statutes, codes and requirements of
any applicable Fire Rating Bureau or other body exercising similar functions); (ii) the
temporary and/or permanent certificate or certificates of occupancy issued for the Facility
Premises as then in force; and (iii) any and all provisions and requirements of any property,
casualty or other insurance policy required to be carried by Owner under this Agreement.
"Retail Space" has the meaning provided in the Recitals.
.
"SMHC" has the meaning provided in the Recitals.
"Substitute Spaces" has the meaning provided in Section 7.
"Successor Owner" shall mean an owner of the Facility Premises that is not the
Agency, the City or any instrumentality of the Agency or the City.
"Term" has the meaning provided in Section 3.
"Total Taking" has the meaning in Section 13.
"Unavoidable Delays" has the definition provided in the Lease, but substituting
"Agreement" for "Lease" and "Grantee" for "Tenant" in such definition.
"Use Fee" has the meaning provided in Section 4.
"Use Fee Commencement Date" has the meaning provided in Section 4.
"Vehicles" has the meaning provided in Section 2.
2. GRANT OF EASEMENTS. The Agency, as the fee owner of the Land and
the Facility, hereby grants and creates for the benefit of Grantee, and its customers,
contractors, agents, servants, employees, guests, invitees, tenants and licensees
(collectively, the "Permitted Users") a non-exclusive easement (the "Easement") solely
for the purpose of parking up to 174 Vehicles (as hereinafter defined) in and on Parking
Spaces (as hereinafter defined) existing in the Garage, and for access, ingress, and egress
for pedestrian and vehicular passage and traffic over and upon the Facility Premises in
connection with such parking, subject to and in accordance with this Agreement.
8
m: 1817GrD I 096
The floor plans attached hereto and incorporated herein as Exhibit 2 depict (i) the
approximate location of the eight hundred and three (803) individual Parking Spaces to be
provided in the Garage, (ii) the Retail Space and (iii) the area over which the Easement is
granted hereunder. The term "Parking Space" as used in this Agreement shall mean a
space designed for the parking of automobiles, vans, trucks, motorcycles and other similar
vehicles (''Vehicles'') and complying with the Requirements.
3. TERM. Subject to and upon the terms and conditions set forth herein, the
term of this Agreement (the "Term") shall take effect as of the earlier to occur of the Use
Fee Commencement Date and the Hotel Opening Date (the "Commencement Date") and
shall terminate upon the latest to occur of (x) the Expiration of the Term of the Lease, (y)
the date on which the improvements on the Grantee Land are no longer operated or
intended to be operated as a hotel and (z) the date on which the Grantee Land and the
improvements constructed thereon from time fa time are no longer subject to parking
requirements under the Requirements.
4. USE FEE.
(a) Use Fee. Grantee agrees to pay Owner, commencing on the later to
occur of (i) the Hotel Opening Date, which, for the purposes of this subsection 4(a), shall
not be later than twenty-four (24) months after the date Grantee is obligated to commence
construction of the Hotel (subject to Unavoidable Delays) under and in accordance with the
Hotel Development Agreement and (ii) the date on which (x) construction of the Garage
is substantially completed in accordance with the Construction Plans and Development
Drawings and (y) the Garage contains at least 174 Parking Spaces of which the Permitted
Users are entitled to have Priority Use as provided herein and is opened for business to
the general public (the "Use Fee Commencement Date"), an annual use fee (the "Use
Fee") in the amount of One Hundred Fifty-Six Thousand Six Hundred Dollars ($156,600),
which Use Fee shall be payable pursuant to subsection 4(e), subject, however, to the
terms contained in subsections 4(b) and 4(c). The Use Fee shall be in addition to the
parking charges described in Section 6 below. The Use Fee shall be prorated for any
period of less than one full Fiscal Year.
(b) Facility Usage Payment. In consideration of Grantee's obligations
hereunder, Owner agrees to pay to Grantee, from and after the Use Fee Commencement
Date, pursuant to subsection 4(e), a percentage of the annual Gross Parking Revenues,
which percentage shall be as follows (the "Facility Usage Payment"):
(i) Owner shall pay to Grantee an amount equal to 13.05% of the
first $1,200,000 of annual Gross Parking Revenues; and
(ii) Owner shall pay to Grantee an amount equal to 6.46% of those
annual Gross Parking Revenues that exceed such $1,200,000;
9
m: 1817or~ I 097
provided, however, the first $156,600 of the Facility Usage Payment for each Fiscal Year
shall be applied as a credit against the Use Fee for that Fiscal Year.
(c) Minimum Facility Usage Pavment. If at any time or from time to time
during the term of this Agreement the amount (the "Excess Usage Payment Amount"),
if any, by which (i) the cumulative aggregate Use Fees paid by Grantee from and after the
Use Fee Commencement Date exceed (ii) the cumulative aggregate Facility Usage
Payments received by Grantee from and after the Use Fee Commencement Date is
greater than $313,200 the Facility Usage Payment thereafter shall be payable at a rate
equal to the greater of (a) $156,600 for each Fiscal Year or (b) the Facility Usage Payment
calculated in accordance with subsection 4(b) above, until the Excess Usage Payment
Amount no longer exceeds $313,200.
(d) Gross Parking Revenues. ~ For purposes hereof, "Gross Parking
Revenues" shall mean, with respect to any Fiscal Year, any and all gross rents, receipts
or fees or other parking revenues from the operation of the Garage. The following shall,
however, be excluded from Gross Parking Revenues:
(i) Federal, state and municipal excise, sales, resort, use, and
other taxes collected from Garage customers as a part of or
based upon the sales price of any goods or services, including
without limitation, gross receipts, parking, garage, or similar
taxes collected from Garage customers;
(ii) Allowances, rebates and refunds not included in Gross Parking
Revenues in accordance with generally accepted accounting
principles;
(iii) The proceeds of any financing or refinancing of all or any part
of the Facility Premises;
(iv) The proceeds of any insurance or any condemnation award;
(v) Proceeds from the sale of all or any portion of the Facility
Premises; and
(vi) Rents, receipts or other revenues of any kind from the Retail
Space.
(e) Payment Date. Owner or Grantee, as applicable, shall pay the amount
set forth on the Gross Parking Revenues Statement (as defined in subsection 8(c) below).
As applicable, in each month, (i) Owner shall pay any required amount simultaneously with
the delivery to Grantee of the Gross Parking Revenues Statement required pursuant to
10
~ft: 18170r~ I 098
subsection 8(c) hereof for the preceding month or (ii) Grantee shall pay any required
amount within ten (10) days following the receipt by Grantee of the Gross Parking
Revenues Statement required pursuant to subsection 8(c) hereof for the preceding
month.
5. GARAGE OPERATIONS.
(a) Garage Ooerator. The "Garage Operator" shall mean (i) a nationally
recognized parking garage operator designated by Owner from the list of such operators
set forth on Exhibit 5(a) attached hereto and incorporated herein or (ii) any other parking
garage operator designated by Owner and approved by Grantee.
(b) Garage Management Aareement.
~
(i) Owner shall cause the Garage to be operated and managed
exclusively by the Garage Operator in accordance with the terms and conditions of this
Agreement, pursuant to a written garage management agreement (any such agreement,
together with any amendments or modifications thereto, being hereinafter referred to as
the "Garage Management Agreement") providing for services, and containing terms and
conditions (including without limitation the terms of subsections 5(c) and 6(c) hereof),
reasonable and customary for the operation of a garage in accordance with the terms of
and not inconsistent with the requirements of this Agreement. Owner and Grantee agree
that the Garage Management Agreement shall further provide that the Garage Operator
shall provide to Grantee and the Permitted Users Priority Use of that number of Parking
Spaces as the manager engaged by Grantee to manage and operate the Hotel, or any
successor or assign thereof, shall request from time to time by not less than twenty-four
(24) hours advance notice to the Garage Operator, such request to be made in writing or
in accordance with procedures mutually acceptable to the Garage Operator, Owner and
Grantee; provided, however, that such number of Parking Spaces shall not exceed one
hundred seventy-four (174).
(ii) Owner shall (w) perform or cause to be performed Owner's
material obligations under the Garage Management Agreement and (x) enforce the
performance by the Garage Operator of all of its material obligations under the Garage
Management Agreement.
(iii) Owner shall promptly give Grantee a copy of any notice of
default, event of default, termination or cancellation sent or received by Owner regarding
the Garage Management Agreement.
(iv) Owner shall (y) deliver to Grantee, at least fifteen (15) days
prior to the execution thereof, copies of any proposed Garage Management Agreement or
any amendment or modification thereto and (z) promptly deliver to Grantee executed
11
~[b: 18170r~ I 099
copies of the Garage Management Agreement and any amendment or modification of the
Garage Management Agreement.
(c) Liability. Grantee shall not incur any liability to Garage Operator under
the Garage Management Agreement.
(d) Hours and Security. The Garage shall be open twenty-four (24) hours
a day 365 (or, if applicable, 366) days a year, and Owner shall keep the Garage
appropriately lighted and shall maintain appropriate security.
(e) Standards. The Garage shall be operated in accordance with the
standards of quality and operation described on Exhibit 5(e) attached hereto and
incorporated herein.
(f) MB Redevelopment. Inc. Garage Easement Agreement.
Notwithstanding anything in this Agreement to the contrary, in the event that, due to a
casualty, Partial Taking or otherwise, the Garage contains less than the sum of the Parking
Spaces with respect to which MB Redevelopment, Inc. and Grantee are entitled to have
Priority Use under the MB Redevelopment, Inc. Garage Easement Agreement and this
Agreement, respectively (as each agreement may be amended and to the extent each
agreement is in effect), the number of Parking Spaces in the Garage of which Grantee is
entitled to have Priority Use hereunder shall be equal to the excess, if any, of (i) the
number of Parking Spaces in the Garage over (ii) the number of Parking Spaces of which
MB Redevelopment, Inc. is entitled to have Priority Use pursuant to the MB
Redevelopment, Inc. Garage Easement Agreement; provided, however, that the number
of Parking Spaces of which Owner is required to provide Priority Use to Grantee under this
Agreement will remain unchanged by any such calculation.
(g) Manner of Providing Priority Use of Parking Spaces. The Garage
Management Agreement shall provide that the manner in which Garage Operator shall
provide Priority Use of Parking Spaces to Grantee and the Permitted Users shall not be
inconsistent with this Agreement and shall be reasonably acceptable to Grantee.
6. USE OF GARAGE.
(a) Grantee Use. The Permitted Users may use the Garage solely for the
purpose of parking Vehicles of the Permitted Users. The Garage may not be used by the
Permitted Users for any other purpose without the prior written consent of Owner.
(b) Owner Use. Owner may use and allow the use of the Garage for the
purpose of the parking of Vehicles of the general public, including, without limitation, the
customers, contractors, agents, servants, employees, guests, invitees and licensees
(collectively, the "Loews Hotel Users") of the hotel commonly known as the Loews Miami
12
~tt: 181l0PGII 00
Beach Hotel, which has a street address of 1601 Collins Avenue, Miami Beach, Florida
(the "Loews Hotel"). Owner may also use the Garage for any other purpose; provided that
(i) any such other purpose is not incompatible with the operation of a first class convention
center hotel, (ii) such other purpose does not negatively affect in any material respect the
Easement and the other rights granted to Grantee pursuant to this Agreement and (iii)
Owner consults with Grantee prior to using the Garage for any such other purpose.
(c) Charges for Garage. The parking charges for Permitted Users shall
be established by the Garage Operator, subject to the approval of Owner; provided,
however, that (i) charges to Grantee for Hotel valet parking shall not exceed fifty percent
(50%) of the self-park rate; and (ii) charges for parking for the employees of Grantee or the
Hotel Manager that work at the Hotel shall not exceed the lowest of (x) the monthly parking
rate, (y) fifty percent (50%) of the self-park rate or (z) the contract parking rate. The
Permitted Users will in no event be charged more than the lower of (m) the self-park rate
charged to the general public or (n) the rate charged to the applicable Loews Hotel Users.
(d) Preference. Grantee agrees to utilize all available parking spaces in
the Garage prior to utilizing other parking facilities not located on the Grantee Land and to
encourage the use of the Garage by the other Permitted Users.
(e) Intentionallv Omitted.
(f) Allocation of Parking Spaces. If, at any time during the Term of this
Agreement, Grantee is actually unable to utilize 174 Parking Spaces at all times because
the spaces in such parking area are occupied by vehicles not belonging to Permitted
Users, Grantee shall notify Owner in writing and Owner shall cause the Garage Operator
to take all such steps as are necessary to insure that the Permitted Users are given
appropriate Priority Use of 174 Parking Spaces in accordance with this Agreement. If such
inability to use its 174 spaces occurs more than three (3) times in any three (3) week
period, then Owner shall effect a remedy of the situation pursuant to one or more of the
remedies described on Exhibit 6(f) attached hereto and incorporated herein (and such
remedies, without limitation, will be expressly accorded to Owner in the Garage
Management Agreement) or any other remedy that results in a remedy of the situation. The
actual remedy or remedies so used shall be selected by Owner acting reasonably after
consulting with Grantee.
7. OWNER'S COVENANTS AND OBLIGATIONS.
(a) Use. Owner may grant other easements or rights in or over the Land
and/or Facility and may use the Land and/or Facility, in each case subject to the
Easement, for any purpose permitted herein in the sole discretion of Owner; provided,
however, that (i) any. such easement, right or use shall not be incompatible with the
operation of a first class convention center hotel, (ii) any such easement, right or use shall
13
~tt: 18170P~ II 0 I
not negatively affect in any material respect the Easement and the other rights granted to
Grantee pursuant to this Agreement, (iii) any such easement, right or use shall provide
parking rights only with respect to the Excess Parking Spaces and (iv) Owner shall consult
with Grantee prior to granting or permitting any such other easement, right or use.
(b) Construction. Owner shall, at its expense, cause the construction on
the Land of the Garage substantially in accordance with the Construction Plans and
Development Drawings.
(c) Comoatibility to Hotel. Owner, at its expense, shall operate, maintain
and manage (or cause the operation, maintenance and management of) the Facility
Premises (including the Retail Space) in a manner compatible with a first class convention
center hotel.
(d) Maintenance. Owner, at its expense, shall take good care of, and
keep and maintain, the Facility Premises in good and safe order and condition and shall
make all repairs therein and thereon necessary to keep the Facility Premises in good and
safe order and condition, however the necessity or desirability therefor may arise. Owner
shall, at its expense, keep clean and free from dirt, mud, standing water, rubbish,
obstructions and physical encumbrances all areas of the Facility Premises.
(e) Equipment. Owner shall maintain all the necessary building and
operating equipment and fixtures located at or used in connection with the operation of the
Garage.
(f) Reoairs. All repairs made by Owner shall be substantially equal in
quality to the original quality of the items being repaired and shall be made in compliance
with the Requirements.
(g) Substitute Parking. If for any reason whatsoever, including, without
limitation, Unavoidable Delay, default by SMHC under the Garage Development
Agreement, a Total Taking, a Partial Taking or a temporary taking under subsection 13(f),
damage, destruction or casualty, or the application of the provisions of subsection 5(f){ii),
Owner is unable to or does not provide to the Permitted Users Priority Use of 174 Parking
Spaces at the Garage in accordance with this Agreement, for any period of time from and
after the Hotel Opening Date then, notwithstanding anything to the contrary in this
Agreement or any Project Agreement, Owner shall provide substitute parking in
accordance with the following requirements:
(i) The number of substitute parking spaces (the "Substitute
Spaces") required to be provided shall be equal to (x) 174 minus (y) the number of
available Parking Spaces in the Garage as to which Permitted Users have Priority Use in
accordance with this Agreement;
14
~t[: 18170r~ II 02
(ii) No less than 80% of the Substitute Spaces or such greater
number as may be required by the Requirements applicable to the Hotel shall be located,
from the main entrance to the Hotel, within the lesser of (I) 1200 feet or (II) the distance
required by the Requirements in order for the Hotel to be in compliance with the
Requirements concerning parking;
(iii) Owner shall take such actions as Grantee reasonably requests
to ensure that Permitted Users have access to the Substitute Parking in a convenient, safe
and secure manner;
(iv) Grantee shall be entitled to Priority Use of the Substitute
Spaces to the same extent as it is entitled to have Priority Use of parking at the Garage
under this Agreement;
(v) Owner shall, within thirty (30) days following demand, reimburse
Grantee for all out-of-pocket costs reasonably incurred as a result of the utilization of
Substitute Parking, which costs may include, without limitation, additional payroll costs of
providing transportation for Permitted Users to and from the location at which Substitute
Spaces is provided and the cost of additional security;
(vi) The Use Fee shall be proportionately reduced in the same
proportion as the number of Substitute Spaces bears to 174 for so long as Substitute
Spaces are required to be provided hereunder;
(vii) Permitted Users shall pay parking charges for the Substitute
Spaces at a rate that is not greater than the lower of (x) the rate that would have been
charged for such parking spaces if such parking spaces had been provided at the Garage,
in accordance with the provisions of subsection 6(c) of this Agreement, and (y) the rate
charged to the general public at the facility or parking lot in which the Substitute Spaces
are located; and
(viii) Nothing in this subsection 7(9) shall limit Owner's obligation
to restore the Garage as provided in this Agreement.
Owner acknowledges that (i) the above covenant to provide the Substitute Spaces
pursuant to this Agreement is a material inducement to Grantee to enter into the Lease and
the Agreement and (ii) that in the event of a breach of such covenant, monetary damages
will be inadequate to compensate Grantee for harm resulting from such breach, and
Grantee shall have, immediately upon such failure to provide parking and notwithstanding
the provisions of subsection 9(c) hereof, the right to seek injunctive relief to compel the
cure of such breach or damages to compensate Grantee for Owner's failure to provide the
Substitute Parking. Nothing herein shall limit any claim Owner may have against SMHC
under the Garage Development Agreement.
15
~tb: 18170P~ II 03
(h) Reauirements. Owner, at its expense, shall comply with all
Requirements with respect to the construction, maintenance and operation of the Facility
Premises, including but not limited to maintaining all permits and licenses necessary for
the operation of the Facility Premises.
(i) Alterations. Owner may make alterations (structural or otherwise) to
the Facility; provided, however, that (i) no such alteration (whether during the course of
making such alteration or thereafter) may negatively affect in any material respect (x) the
efficiency, function, compatibility or first class quality of the Garage or (y) any of the rights
of Grantee under this Agreement and (ii) Owner provides Grantee thirty (30) days prior
notice of any such alteration, such notice to include a copy of the plans and specifications
for such alteration.
~
0) Heiaht. Owner hereby agrees that for so long as a hotel shall be
operated on the Grantee Land, Owner shall not increase the height of the Facility so as to
adversely affect the useful enjoyment of the swimming pool located on the Grantee Land.
8. FINANCIAL REPORTS AND RECORDS
(a) Books and Records. Owner shall at all times during the term of this
Agreement keep and maintain (separate from any of the Owner's other books, records and
accounts), and shall cause the Garage Operator to keep and maintain, accurate and
complete records pertaining to the Garage, reflecting the Gross Parking Revenues, in
accordance with generally accepted accounting principles, consistently applied, with such
exceptions as may be provided for in this Agreement, and provided that Owner (and the
Garage Operator) may make reasonable modifications in such books of account as are
consistent with the Garage Operator's standard practice in accounting for its operations
under garage operating agreements generally. Grantee and its representatives shall have,
during normal business hours and upon reasonable advance notice, access to inspect the
books and records of Owner and the Garage Operator pertaining to the Garage, including,
without limitation, books of account properly reflecting the operations of the Garage, which
books and records shall be kept in the City of Miami Beach, Florida. Grantee shall have
the right to cause an audit by any Recognized Accounting Firm (in accordance with
generally accepted accounting principles) of such books and records to be made at any
time (but not more frequently than one (1) time in any twelve (12) month period), at
Grantee's expense (a copy of which shall be delivered to Owner). Such right of inspection
and audit may be exercised at any time within three (3) years after the end of the Fiscal
Year to which such books and records relate, and Owner and the Garage Operator shall
maintain all such books and records for at least such period of time and, if any dispute
between the parties has arisen and remains unresolved at the expiration of such period of
time, for such further period of time until the resolution of such dispute.
16
8n: 18170r~ f I 04
(b) Audit Results. If, upon any audit by Grantee as described above of
the books or records of Owner or Garage Operator, (i) an error (which shall mean a
mistake in calculation or an accounting error, but shall exclude any error based on
assertions that Owner or the Garage Operator acted imprudently or unwisely in the
operation and management of the Garage) shall be revealed which results in there having
been an underpayment to Grantee of the Facility Usage Payment for any Fiscal Year for
which Gross Parking Revenues Statements are being audited pursuant to subsection
8(a), the amount of any such underpayments of Facility Usage Payment which may be
disclosed by such audit, together with interest accrued thereon at the Late Charge Rate
from the date on which such underpayment should have been paid until the date of
payment of the correct amount, shall be paid to Grantee upon thirty (30) days demand or
(ii) an error shall be revealed which results in there having been an overpayment by Owner
to Grantee of the Facility Usage Payment, Grantee shall remit the amount of such
overpayment (less the cost of such audit, out not more than the amount of such
overpayment) to Owner within thirty (30) days after the completion of such audit. If such
error results in there having been an underpayment to Grantee of the Facility Usage
Payment for any Fiscal Year being audited pursuant to subsection 8(a) in an amount
equal to or exceeding three (3%) percent of the Facility Usage Payment theretofore paid
by Owner in respect of such Fiscal Year, then the cost of such audit shall be paid by Owner
to Grantee upon thirty (30) days demand. If Grantee does not notify Owner of any error
in the calculation of Facility Usage Payment within three (3) years after the end of any
Fiscal Year, then Grantee shall be deemed to have conclusively waived any and all
objections with respect to any Facility Usage Payment with respect to such Fiscal Year.
(c) Gross Parking Revenues Statements. As soon as available, but in no
event later than thirty (30) days after the end of each month, Owner shall deliver to
Grantee an unaudited Gross Parking Revenues statement (a "Gross Parking Revenues
Statement") for both such month and the Fiscal Year to date. Each Gross Parking
Revenues Statement shall also set forth the Use Fee and the Facility Usage Payment and
the net amount payable for such month (on a cumulative Fiscal Year-to-date basis) and
any Excess Usage Payment Amount. By the end of the fifth calendar month following the
end of each Fiscal Year, Owner shall furnish to Grantee a copy of the annual Gross
Parking Revenues Statement for the previous Fiscal Year (which statements shall have
been audited by a Recognized Accounting Firm) accurately reflecting the annual Gross
Parking Revenues, the Use Fee and the Facility Usage Payment payable for such previous
Fiscal Year, the Use Fee and the Facility Usage Payment actually paid during such
previous Fiscal Year and any Excess Usage Payment Amount as at the end of such
previous Fiscal Year, all prepared and certified by Owner and such Recognized Accounting
Firm in accordance with generally accepted accounting principles consistently applied. If
any such annual Gross Parking Revenues Statement shall indicate that there was an
overpayment or an underpayment of the Use Fee and/or the Facility Usage Payment for
such previous Fiscal Year, then the amount of any such overpayment shall be returned,
within thirty (30) days fol/owing delivery of the annual Gross Parking Revenues Statement,
17
Wff: 1817or~ 1105
to the party entitled thereto and the amount of any such underpayment shall be paid to the
party entitled thereto.
(d) Survival. The obligations of Owner and Grantee under this Article shall
survive the expiration or termination of this Agreement, but not later than the fourth (4th)
anniversary of the effective date of such expiration or termination.
9. DEFAULT.
(a) Grantee Default. If Grantee fails to timely pay the Use Fee or any
other amounts payable by Grantee hereunder, and Grantee fails to bring such payments
current within thirty (30) days after Notice by Owner to Grantee, Owner shall be entitled to
terminate this Agreement. If Grantee defaults in the performance of any other obligation
required of it under this Agreement, and Grantee~fails to cure such default within thirty (30)
days after Notice by Owner to Grantee of such default, or if such a default is of such a
nature that it cannot reasonably be remedied within thirty (30) days after the giving of such
default Notice (but is otherwise susceptible to cure), Grantee shall not (i) within thirty (30)
days after the giving of such default Notice, advise Owner of Grantee's intention to institute
all steps (and from time to time, as reasonably requested by Owner, Grantee shall advise
Owner of the steps being taken) necessary to remedy such default (which such steps shall
be reasonably designed to effectuate a cure of such default in a professional manner), and
(ii) thereafter diligently prosecute to completion all such steps necessary to remedy the
same, then Owner shall be entitled to sue for damages, but shall have no termination rights
pursuant thereto.
(b) Termination of Lease. Without limitation to subsection 9(a), but
subject to the provisions of Section 10 below, upon a termination of the Lease pursuant
to the terms of the Lease resulting from an "Event of Default" by Grantee under the Lease,
this Agreement shall be terminated, except with regard to any amounts owed by Grantee
to Owner or by Owner to Grantee under this Agreement as of the date of the termination
of this Agreement. Notwithstanding the preceding sentence, if at the time of the
occurrence of any such Event of Default there exists a Recognized Mortgage, then (i) this
Agreement shall not be so terminated prior to or during the sixty (60) day period described
in the first sentence of Section 11.6(b) of the Lease and, if such Recognized Mortgagee
requests New Tenant's Documents pursuant to such first sentence, during the ninety (90)
day period described in such first sentence and (ii) Owner shall recognize, as the Grantee
hereunder, any party that succeeds to the interest of "Tenant" under the Lease or enters
into New Tenant's Documents with the "Owner" under the Lease in accordance with the
provisions of the Lease.
(c) Owner Default. If Owner fails to timely pay the Facility Usage
Payment, and Owner fails to bring such payments or any adjustments thereto current
within thirty (30) days after Notice by Grantee to Owner, Grantee may offset such failure
18
~n: 18170rb II 06
against the Use Fee and sue for damages for any remaining sum; provided, however, that
any such offset shall not limit any other right or remedy available to Grantee, except to the
extent that such offset cured such failure. If Owner defaults in the performance of any non-
monetary obligation required of it under this Agreement (other than the covenant to build
the Facility containing 174 Parking Spaces and providing Priority Use thereof as provided
herein and to provide the Easement for parking), and Owner fails to cure such default
within thirty (30) days after Notice by Grantee to Owner of such default, or jf such a default
is of such a nature that it cannot reasonably be remedied within thirty (30) days after the
giving of such default Notice (but is otherwise susceptible to cure), and Owner shall not (i)
within thirty (30) days after the giving of such default Notice, advise Grantee of Owner's
intention to institute all steps (and from time to time, as reasonably requested by Grantee,
Owner shall advise Grantee of the steps being taken) necessary to remedy such default
(which such steps shall be reasonably designed to effectuate a cure of such default in a
professional manner), and (ii) thereafter diligenfly prosecute to completion all such steps
necessary to remedy the same, then Grantee is entitled to sue for damages. If, following
the date that is one hundred twenty (120) days following the Hotel Opening Date, the
Garage is not open for business and Owner has failed to achieve Substantial Completion
(as defined in the Garage Development Agreement) of the Facility containing 174 Parking
Spaces and providing Priority Use thereof as provided herein and to provide the Easement
for parking pursuant to this Agreement, then, in addition to the provisions of subsection
7(9), Grantee shall be entitled to seek injunctive relief or specific performance to compel
the cure of such default and/or (w) pursuant and subject to the provisions of subsection
9(d), complete the construction of the Garage pursuant to the provisions hereof at Owner's
sole cost and expense. Owner acknowledges that (x) the covenant to build the Facility
containing 174 Parking Spaces and providing Priority Use thereof as provided herein and
to provide the Easement for parking is a material inducement to Grantee to enter into the
Lease and this Agreement and (y) that in the event of a breach of such covenant, monetary
damages will be inadequate to compensate Grantee for harm resulting from such breach
and, in addition to the provisions of subsection 7(9), Grantee shall have the right to seek
injunctive relief or specific performance to compel the cure of such breach.
(d) Right to Perform the Other Party's Covenants.
(i) If a default shall occur and be continuing beyond any applicable
grace period, either party may, but shall be under no obligation to, perform the obligation
of the other party giving rise to such default, without waiving or releasing the other party
from any of its obligations contained herein, provided that such party shall exercise such
right only in the event of a bona fide emergency or after five (5) days notice to the other
party. Without limiting the provisions of subsection 9(c) hereof, Owner grants Grantee an
additional easement on the Facility Premises to permit Grantee to exercise its cure rights
or to permit Grantee to maintain its Easement if for any reason Owner fails to maintain the
Easement, whether by default hereunder or otherwise.
19
~~: 18170r~ I ) 07
(ii) Any amount paid by Grantee in performing the obligations of
Owner under this Agreement as set forth above, including, without limitation, all costs and
expenses incurred by Grantee in connection therewith, shall be reimbursed to Grantee
within thirty (30) days after Grantee's demand therefor, together with interest thereon
calculated at the Late Charge Rate from the date of notice of any such payment by
Grantee to the date on which payment of such amounts is received by Grantee. If any
Successor Owner fails to reimburse Grantee for such amounts, Grantee shall have a lien
against the Facility (a "Grantee's Lien") upon recording a claim of lien in the Public
Records of Dade County, Florida for any such unpaid amounts and for the interest accrued
or accruing thereon. Grantee's Lien shall also secure attomeys' fees incurred by Grantee
incident to the collection of such amounts, whether or not legal proceedings are initiated,
and if initiated, at the trial court and appellate levels and in post-judgment proceedings.
All Grantee's Liens shall be superior to the lien of any mortgages encumbering the Facility
or any part thereof, whether recorded prior to or aTter the date of recording the claim of lien,
and all such Grantee's Liens may be foreclosed by suit brought in the name of Grantee in
like manner as a foreclosure of a mortgage on the real property. Grantee may, at its
option, sue to recover a money judgment for unpaid amounts without thereby waiving the
Grantees' Lien securing the same (provided, that upon payment of any such money
judgment, such Grantee's Lien shall be deemed satisfied and shall be promptly discharged
of record). Notwithstanding the foregoing provisions of this subsection 9(d)(ii), from and
after the date a Successor Owner becomes the owner of the Facility, Grantee may not
exercise its rights under this subsection 9(d) unless and until a Notice of Facility Failure
to Cure (as defined below) has been delivered to each Facility Mortgagee and no such
Facility Mortgagee has cured or elected to cure such default of such Successor Owner
pursuant to Section 11 hereof.
(iii) Notwithstanding anything to the contrary in this Agreement, for
so long as this Agreement and the MB Redevelopment, Inc. Garage Easement Agreement
are both in effect simultaneously, if the same default by Owner shall occur and be
continuing beyond any applicable grace period on a simultaneous basis under both the MB
Redevelopment, Inc. Garage Easement Agreement and this Agreement, Grantee shall not
have any of the rights provided under subsection 9(d)(i) and (ii) hereof with regard to that
default unless MB Redevelopment, Inc. has designated in writing to Owner that Grantee
be the sole Person, under both such agreements, to exercise such rights.
(e) Cross-Default. A default by Grantee under the Lease and/orthe Hotel
Development Agreement that occurs and continues beyond any applicable cure period,
including but not limited to any cure period applicable to a Recognized Mortgagee, shall
constitute a default under this Agreement, which default under this Agreement
automatically will be deemed to have continued beyond any applicable cure period,
including but not limited to any cure period applicable to a Recognized Mortgagee. Without
limitation to subsections 9(a) and (b) above, in the event of such a default under this
Agreement, Owner shall be entitled to sue only for damages, except in the eventy
20
m..' 8 t 70r~ t \ 08
subsection 9(b) above is applicable in which case this Agreement shall be terminated,
except with regard to any amounts owed by Grantee to Owner or by Owner to Grantee
under this Agreement as of the date of the termination of this Agreement.
10. NOTICE AND RIGHT TO CURE GRANTEE'S DEFAULTS.
(a) Notice. Owner shall give to a Recognized Mortgagee (as such term
is defined in the Lease), a copy of each notice of default at the same time as it gives notice
of such default to Grantee, and no such notice of default shall be deemed effective with
respect to any Recognized Mortgagee unless and until a copy thereof shall have been so
given to such Recognized Mortgagee. All such notices to a Recognized Mortgagee shall
be sent as set forth in the Lease. Owner shall also give a Recognized Mortgagee notice
("Notice of Failure to Cure") in the event Grantee fails to cure a default within the period,
if any, provided in this Agreement for such cure,~ promptly following the expiration of such
period.
(b) Cure Right. The Recognized Mortgagee shall have a period of sixty
(60) days after receipt of the Notice of Failure to Cure, in the case of any event of default,
to cure the event of default referred to in the Notice of Failure to Cure or cause it to be
cured, subject to subsection 9(a). Nothing contained herein shall be construed as
imposing any obligation upon any Recognized Mortgagee to so perform or comply on
behalf of Grantee. Anything contained in this Agreement to the contrary notwithstanding,
Owner shall have no right to terminate this Agreement prior to the delivery of a Notice of
Failure to Cure or following the delivery of a Notice of Failure to Cure if, within sixty (60)
days after receipt of Owner's Notice of Failure to Cure, any Recognized Mortgagee shall:
(1) notify Owner of such Recognized Mortgagee's desire to cure the
matter described in such Notice of Failure to Cure; and
(2) payor cause to be paid all Use Fees or any other amounts payable
by Grantee hereunder that are then due and in arrears as specified
in the Default Notice from Owner to such Recognized Mortgagee; and
(3) cure all defaults by Grantee in the observance or performance of any
term, covenant or condition of this Agreement on Grantee's part to be
observed or performed (other than the payment of any Use Fees or
other amounts payable by Grantee under this Agreement), or if such
default is of such a nature that it cannot reasonably be remedied
within such sixty (60) day period (but is otherwise susceptible to cure),
such Recognized Mortgagee shall, (i) within sixty (60) days after the
giving of such Notice of Failure to Cure, advise Owner of such
Recognized Mortgagee's intention to institute all steps (and from time
to time, as reasonably requested by Owner, such Recognized
21
~tt: 18170r~ II 09
Mortgagee shall advise Owner of the steps being taken) necessary to
remedy such default (which such steps shall be reasonably designed
to effectuate the cure of such default in a professional manner), and
(ii) thereafter diligently prosecute to completion all such steps
necessary to remedy the same, it being acknowledged by Owner that,
if possession or control of the Easement is required to effect the cure,
the diligent prosecution of a foreclosure of a Recognized Mortgage
shall constitute a part of the steps necessary to remedy such default.
Notwithstanding the foregoing provisions of this subsection 10(b), (i)
following the delivery of a Notice of Failure to Cure, within five (5) Business Days following
the written request of any Recognized Mortgagee (which request may be contained in the
notice from such Recognized Mortgagee to Owner given pursuant to subsection 1 O(b)(1 )),
Owner shall deliver to such Recognized Mortgcfgee a statement certifying the aggregate
amount then due and in arrears hereunder and the estimated per diem increase in such
amount, 'but no such request shall increase or toll any of the time periods provided for in
this subsection 10(b) and (ii) without in any way limiting the obligations of Grantee
hereunder or the rights of Owner hereunder, such Recognized Mortgagee or its
Recognized Mortgagee Designee or Recognized Mortgagee Foreclosure Transferee shall
not be required to payor cause to be paid any amounts payable by Grantee under (x)
clause (ii) of subsection 8(b) or (y) the last sentence of subsection 8(c).
(c) Acceptance. Owner shall accept performance by a Recognized
Mortgagee of any covenant, condition or agreement on Grantee's part to be performed
hereunder with the same force and effect as though performed by Grantee.
(d) Payments. Notwithstanding any other provision of this Agreement, no
payment made to Owner by any Recognized Mortgagee shall constitute the Recognized
Mortgagee's agreement that such payment was, in fact, due under the terms of this
Agreement.
(e) Priority. If there is more than one Recognized Mortgagee, only that
Mortgagee, to the exclusion of all other Recognized Mortgagees, whose Recognized
Mortgage is most senior in lien shall be recognized by Owner as having cure rights under
this Section 10, unless such first priority Recognized Mortgagee has designated in writing
to Owner a Recognized Mortgagee whose Mortgage (as such term is defined in the Lease)
is junior in lien to exercise such rights.
(f) No Surrender or Modification. Owner agrees not to accept a voluntary
surrender, termination or modification of this Agreement at any time while any Recognized
Mortgage(s) shall remain a lien on Grantee's leasehold estate in the Grantee Land. It is
further understood and agreed that any such Recognized Mortgagee(s) shall not be bound
by any surrender, termination or modification of this Agreement unless such surrender,
22
~tf: /S170rb f 110
termination or modification is made with the prior written consent of such Recognized
Mortgagee. Notwithstanding the foregoing, Owner's waiver or postponement of any
obligation of Grantee or any remedy Owner may have under this Agreement shall not
constitute a modification for purposes hereof.
11. FACILITY MORTGAGES; NOTICE AND RIGHT TO CURE SUCCESSOR
OWNER'S DEFAULTS.
(a) Riaht to Mortgage. Each Successor Owner shall have the right to
secure indebtedness in an amount not to exceed Facility Permitted Debt without Grantee's
approval pursuant to a Mortgage that qualifies as a Facility Mortgage. Only one (1) Facility
Mortgage may encumber the Facility Premises or any part thereof at anyone time.
(b) Facility Permitted Debt. "Facility Permitted Debt" means, after a sale
of the Fac;:IIity Premises or a Foreclosure Transfer by a Facility Mortgagee, (i) the principal
amount equal to not more than 75% of the consideration received by Owner (which, in the
case of a sale to an Affiliate, shall not exceed the fair market value of the Facility Premises)
directly for such sale of the Facility Premises (including, however, any Mortgage debt
assumed or taken subject to by such transferee) and (ii) any greater principal amount
approved by Grantee pursuant to subsection 11 (a). In addition, Facility Permitted Debt
shall include any debt obtained in connection with (I) a required Casualty Restoration or
Condemnation Restoration, as applicable, if the Net Insurance Proceeds are, or the Net
Condemnation Award is, inadequate to achieve the required Casualty Restoration or
Condemnation Restoration, as applicable and (II) any advances made by a Facility
Mortgagee with respect to the Facility Premises for the payment of taxes, assessments,
insurance premiums or other costs incurred for the protection of the Facility Premises or
the liens created by the Facility Mortgage, and reasonable expenses incurred by such
Facility Mortgagee, by reason of default by Owner under such Facility Mortgage; provided,
however, that (x) the Net Insurance Proceeds are not inadequate as a result of the failure
by Owner to maintain the insurance required hereunder, (y) any such debt (including any
refinancing thereof by the Owner that incurred such debt) shall increase the amount of
Permitted Debt only for the purposes of effecting such Casualty Restoration or
Condemnation Restoration or paying the advances set forth in the preceding clause (II)
and, following the repayment of such debt by the Owner that incurred such debt, the
provisions of clauses (i) and (ii) shall govern the level of Facility Permitted Debt (except to
the extent the provisions of this clause apply to a subsequent casualty or condemnation
or such payment under or in connection with a Facility Mortgage); and (z) with respect to
any purchaser of the Facility Premises from any Owner that incurred such debt, the
provisions of clauses (i) and (ii) shall govern the level of Facility Permitted Debt (except to
the extent the provisions of this sentence apply to a subsequent casualty or condemnation
or payment under a Facility Mortgage).
23
~r~: 1817or~ II1I
(c) Facility Mortgagee's Rights Not Greater than Owner's. The execution
and delivery of a Facility Mortgage shall not give or be deemed to give a Facility Mortgagee
any greater rights against Grantee than those granted to Owner hereunder, except as
otherwise expressly provided in this Agreement.
(d) Notice. Grantee shall give to the Facility Mortgagee a copy of each
notice of default at the same time as it gives notice of such default to Owner, and no such
notice of default shall be deemed effective with respect to any Facility Mortgagee unless
and until a copy thereof shall have been so given to such Facility Mortgagee. All such
notices to a Facility Mortgagee shall be sent as set forth in the manner provided herein for
the sending of Notices. Grantee shall also give a Facility Mortgagee notice ("Notice of
Facility Failure to Cure") in the event Owner fails to cure a default within the period, if
any, provided in this Agreement for such cure, promptly following the expiration of such
period. ~
(e) Cure Right. The Facility Mortgagee shall have a period of thirty (30)
days atter receipt of the Notice of Facility Failure to Cure, in the case of any event of
default, to cure the event of default referred to in the Notice of Facility Failure to Cure or
cause it to be cured. Nothing contained herein shall be construed as imposing any
obligation upon any Facility Mortgagee to so perform or comply on behalf of Owner.
Anything contained in this Agreement to the contrary notwithstanding, Grantee shall have
no right to terminate this Agreement prior to the delivery of a Notice of Facility Failure to
Cure or following the delivery of a Notice of Facility Failure to Cure if, within thirty (30) days
after receipt of Grantee's Notice of Facility Failure to Cure, any Facility Mortgagee shall:
(1) notify Grantee of such Facility Mortgagee's desire to cure the matter
de~cribed in such Notice of Facility Failure to Cure; and
(2) payor cause to be paid all Facility Usage Payments or any other
amounts payable by Owner hereunder that are then due and in
arrears as specified in the Default Notice from Grantee to such Facility
Mortgagee; and
(3) cure all defaults by Owner in the observance or performance of any
term, covenant or condition of this Agreement on the part of Owner to
be observed or performed (other than the payment of any Facility
Usage Payments or other amounts payable by Owner under this
Agreement), or if such default is of such a nature that it cannot
reasonably be remedied within such thirty (30) day period (but is
otherwise susceptible to cure), such Facility Mortgagee shall, (i) within
thirty (30) days after the giving of such Notice of Facility Failure to
Cure, advise Grantee of such Facility Mortgagee's intention to institute
all steps (and from time to time, as reasonably requested by Grantee,
24
~tf: 18170Pu 1112
such Facility Mortgagee shall advise Grantee of the steps being
taken) necessary to remedy such default (which such steps shall be
reasonably designed to effectuate the cure of such default in a
professional manner), and (ii) thereafter diligently prosecute to
completion all such steps necessary to remedy the same, it being
acknowledged by Grantee that, if possession or control of the Facility
Premises is required to effect the cure, the diligent prosecution of a
foreclosure of a Facility Mortgage shall constitute a part of the steps
necessary to remedy such default. Nothing in this Agreement shall
require a Facility Mortgagee or its Designee or Foreclosure
Transferee to cure any default of Owner not reasonably susceptible
of being cured by such Person.
Notwithstanding the foregoing provisions of this subsection 11 (e), following
the delivery of a Notice of Facility Failure to Cure, within five (5) Business Days following
the written request of any Facility Mortgagee (which request may be contained in the notice
from such Facility Mortgagee to Grantee given pursuant to subsection 11 (e)(1 n, Grantee
shall deliver to such Facility Mortgagee a statement certifying the aggregate amount then
due and in arrears hereunder and the estimated per diem increase in such amount, but no
such request shall increase or toll any of the time periods provided for in this subsection
11 (e) and (ii) without in any way limiting Grantee's rights hereunder or the obligations of
Owner hereunder, such Facility Mortgagee shall not be required to payor cause to be paid
any amounts payable by Owner under (x) clause (i) of subsection 8(b) or (y) the last
sentence of subsection 8(c)).
(f) Acceotance. Grantee shall accept performance by a Facility
Mortgagee of any covenant, condition or agreement on Owner's part to be performed
hereunder with the same force and effect as though performed by Owner.
(g) Payments. Notwithstanding any other provision of this Agreement, no
payment made to Grantee by any Facility Mortgagee shall constitute the Facility
Mortgagee's agreement that such payment was, in fact, due under the terms of this
Ag reement.
(h) No Surrender or Modification. Grantee agrees not to accept a
voluntary surrender, termination or modification of this Agreement at any time while any
Facility Mortgage shall remain a lien on all or any portion of the Facility Premises. It is
further understood and agreed that any such Facility Mortgagee shall not be bound by any
surrender, termination or modification of this Agreement unless such surrender, termination
or modification is made with the prior written consent of such Facility Mortgagee.
Notwithstanding the foregoing, Grantee's waiver or postponement of any obligation of
Owner or any remedy Grantee may have under this Agreement shall not constitute a
modification for purposes hereof.
25
m:18170r~1113
(i) Grantee's Self-Help Rights.
(1) Notwithstanding the foregoing provisions of this Section 11, if a
Facility Mortgagee, if any, fails (for any reason) to cure any default by Owner described in
paragraph (3) of subsection 11(e) within thirty (30) days following receipt of the Notice of
Facility Failure to Cure regarding such default, then Grantee may, upon notice, but shall
be under no obligation to, perform the obligation of Owner the breach of which gave rise
to such default, without waiving or releasing Owner from its obligations with respect to such
default. Owner hereby grants Grantee access to the Facility Premises in order to perform
any such obligation. Any amount paid by Grantee in performing Owner's obligations as
provided in this subsection 11 (i)(1), including all costs and expenses incurred by Grantee
in connection therewith, shall be reimbursed to Grantee within thirty (30) days following
Grantee's demand therefor, together with a late charge on amounts actually paid by
Grantee, calculated at the Late Charge Rate from the date of notice of any such payment
by Grante:e to the date on which payment of such amounts is received by Grantee.
(2) Notwithstanding anything to the contrary in this Agreement, for so
long as this Agreement and the MB Redevelopment, Inc. Garage Easement Agreement
are both in effect simultaneously, if the same default by Owner shall occur and be
continuing beyond any applicable cure period on a simultaneous basis under both the MB
Redevelopment, Inc. Garage Easement Agreement and this Agreement, Grantee shall not
have any of the rights provided under subsection 11 (i)(1) above with regard to that default
unless MB Redevelopment, Inc. has designated in writing to Owner that Grantee be the
sole Person, .under both such agreements, to exercise such rights.
0) Aoplication of Proceeds from Insurance or Condemnation Awards. To
the extent that this Agreement requires that insurance proceeds paid in connection with
any damage or destruction to the Facility Premises, or the proceeds of an award paid in
connection with a taking referred in Section 13 hereof, be applied to restore any portion
of the Facility Premises, no Facility Mortgagee shall have the right to apply the proceeds
of insurance or awards toward the payment of the sum secured by its Facility Mortgage,
except for the reasonable costs of collection thereof.
(k) Apoearance at Condemnation Proceedings. A Facility Mortgagee
shall have the right to appear in any condemnation proceedings and to participate in any
and all hearings, trials and appeals in connection therewith.
(I) Riahts Limited to Facility Mortgaaees. The rights granted to a Facility
Mortgagee under the provisions of this Agreement shall not apply in the case of any
Mortgagee that is not a Facility Mortgagee.
26
~~~:1817or~1114
(m) Facility Mortgagee's Assignment Rights.
(i) Notwithstanding anything contained in this Agreement to the
contrary, a Foreclosure Transfer shall not require the consent of Grantee or constitute a
breach of any provision of or a default under this Agreement. Upon any such Foreclosure
Transfer, Grantee shall recognize the Foreclosure Transferee as Owner hereunder;
provided, however that such new Owner shall deliver to Grantee, or shall cause to be
delivered to Grantee, within thirty (30) days after the execution thereof, a true and correct
copy of the instrument(s) effecting such transfer, including an assumption agreement, if
applicable.
(ii) Notwithstanding anything contained in this Agreement to the
contrary, no Facility Mortgagee or other Foreclosure Transferee shall be liable under this
Agreement unless and until such time as it becol'hes Owner hereunder, and then only for
so long as it remains Owner hereunder.
(iii) Definitions:
(i) "Foreclosure Transfer" means a transfer occurring as
a result of the foreclosure of a Facility Mortgage, or any sale of Owner's interest in the
Facility Premises and this Agreement, or any other transfer or assignment of Owner's
interest in the Facility Premises and this Agreement, by judicial proceedings pertaining to
a Facility Mortgage or by virtue of the exercise of any power contained in a Facility
Mortgage, orby deed-in-lieu or other consensual conveyance, or otherwise:
(x) by or on behalf of Owner to a Facility Mortgagee
(or its Designee or Foreclosure Transferee); or
(y) by or on behalf of Owner or a Facility Mortgagee
(or its Designee or Foreclosure Transferee) to a purchaser of Owner's
interest in the Facility Premises and this Agreement at a foreclosure
sale pursuant to a Facility Mortgage or by a Facility Mortgagee (or its
Designee or its Foreclosure Transferee) after consummating a
Foreclosure Transfer as described in clause (x) above.
(ii) "Foreclosure Transferee" means the purchaser,
transferee or other assignee in a Foreclosure Transfer of Owner's interest in the Facility
Premises and this Agreement.
(iii) "Designee" means an Affiliate of a Facility Mortgagee
that is the designee or nominee of such Facility Mortgagee.
27
~ff: 18170rG 1115
12. DAMAGE, DESTRUCTION AND RESTORATION
(a) Notice to Grantee. If the Facility is damaged or destroyed in whole or
in any material part by fire or other casualty, Owner shall notify Grantee of same as soon
as reasonably possible after Owner's discovery of same.
(b) Obligation to Restore. If all or any portion of the Facility is damaged
or destroyed by fire or other casualty, ordinary or extraordinary, foreseen or unforeseen,
then (x) if the Agency, the City or any instrumentality of the Agency or the City is the
Owner, such Owner shall, in accordance with the provisions of this Section 12 and the
plans and specifications used for the initial construction of the Facility, restore the Garage
to the extent necessary to provide 174 Parking Spaces (and such additional Parking
Spaces as may be required under any other parking easements, use agreements or
equivalent agreements then affecting the FacilitY (none of which may provide for rights to
Parking Spaces other than the Excess Parking Spaces)) or (y) if any Successor Owner is
the Owner, such Successor Owner shall, in accordance with the provisions of this Section
12 and the plans and specifications used for the initial construction of the Facility, restore
the Garage to the extent necessary to provide 803 Parking Spaces, in each case so that
the Facility (excluding the Retail Space) is substantially equal in quality to the original
quality of the Facility (a "Casualty Restoration"), regardless of whether the Net Insurance
Proceeds shall be sufficient therefor. "Net Insurance Proceeds" shall mean the actual
amount of insurance proceeds paid following a fire or other insured casualty. Any
alterations to the Garage made in connection with such restoration shall be subject to the
provisions ofsubsection 7(i) of this Agreement. Nothing in this subsection 12(b) shall
affect the Easement or Priority Use of 174 Parking Spaces or other obligations of Owner
under this Agreement.
(c) Commencement of Construction Work. Owner shall commence the
construction work in connection with a Casualty Restoration within ninety (90) days after
the receipt of any Net Insurance Proceeds payable with respect to the casualty that caused
the need for such Casualty Restoration and shall diligently pursue the completion of such
Casualty Restoration.
(d) Effect of Casualty on this Agreement.
(i) In the event of a casualty as described in this Section 12,
this Agreement shall continue for the remainder of the Term (subject to subsection 12{b)
above) without diminution of any of Grantee's obligations hereunder, but with (x) a fair and
equitable abatement of the Use Fee and (y) a fair and equitable reduction of the
"$1,200,000" amount referred to in subsection 4{b) hereof and the "$313,200" and
"$156,600" amounts referred to in subsection 4(c) hereof.
28
Bn: 18170Pb J r 16
(ii) During the period of the Casualty Restoration, Owner shall
supply the parking spaces required to be furnished to Grantee by Owner through off-site
parking pursuant to subsection 7(g) hereof to the extent required under this Agreement.
(e) Restoration Funds with reSDect to a Successor Owner.
(i) From and atter the date that the Facility is owned by a
Successor Owner, all Net Insurance Proceeds shall be deposited with any Facility
Mortgagee that is an Institutional Lender, or, if none, with another Institutional Lender
mutually acceptable to such Successor Owner and Grantee pursuant to a mutually
acceptable trust agreement. Provided such Successor Owner is conducting the Casualty
Restoration in accordance with this Agreement, the Net Insurance Proceeds shall be paid
out from time to time as the Casualty Restoration progresses, upon the written request of
such Successor Owner, which request shall be'3ccompanied by the following:
(A) A certificate signed by such Successor Owner and the architect
or engineer in charge of the Casualty Restoration, dated not more than fifteen (15) days
prior to such request, setting forth:
(1) that the sum then requested either has been paid by
such Successor Owner or is justly due to contractors, subcontractors, materialmen,
engineers, architects or other Persons who have rendered services or furnished
materials for the work specified, and stating that no part of such expenditures has
been or is being made the basis of any previous or then pending request for the
withdrawal of the Net Insurance Proceeds;
(2) a brief description of the services and materials;
(3) that, except for the amount described in subsection
12(e)(i)(A)(1) hereof, there is no outstanding indebtedness actually known to the
Persons signing such certificate, atter due inquiry, which is then due for labor,
materials, or services in connection with the Casualty Restoration;
(4) that the cost, as estimated by the Persons signing such
certificate, of the work required to complete the Casualty Restoration does not
exceed the amount of the remaining Net Insurance Proceeds, plus any amount
deposited by such Successor Owner (with the Person holding the Net Insurance
Proceeds) to defray the expenses of the Casualty Restoration; and
(5) that the work described has been completed in
accordance with the plans and specifications applicable thereto, in a good and
workerlike manner and in accordance with all Requirements;
29
m: 1817oP~ 1117
(8) Lien waivers, title insurance company reports or such other
evidence to the effect that there has not been filed with respect to the Facility, any
vendor's, mechanic's, laborer's, materialman's or other lien which has not been discharged
of record, except such as will be discharged by payment of the amount then requested;
and
(C) Such other documentation regarding the Casualty Restoration
as any Facility Mortgagee or such other Institutional Lender shall reasonably require.
(ii) Such Successor Owner shall, prior to the commencement of the
Casualty Restoration, furnish to Grantee an estimate of the total cost of the Casualty
Restoration certified by the architect or engineer in charge of the Casualty Restoration.
If such cost estimate or any subsequent estimate provided pursuant to subsection
12(e)(i)(A)(4) hereof shall show that the cost of Oompleting the Casualty Restoration is in
excess of the amount of the Net Insurance Proceeds then available, such Successor
Owner shall promptly deposit with the holder of the Net Insurance Proceeds an amount
equal to such excess. The amount so deposited shall be included in the Net Insurance
Proceeds for all purposes of this Section 12.
(iii) Upon compliance by such Successor Owner with the foregoing
provisions of this Section 12, the holder of the Net Insurance Proceeds shall pay, to such
Successor Owner or the Persons named in the certificate referred to in subsection
12(e)(i)(A), from the Net Insurance Proceeds, an amount equal to ninety percent (90%) of
the cost of th~ Casualty Restoration which is evidenced by the request. At the completion
of each contract or subcontract in connection with the Casualty Restoration, the balance
of the Net Insurance Proceeds relating to that portion of the work, to the extent of and as
required to complete the payment of Casualty Restoration costs relating to that portion of
the work, shall be paid to such Successor Owner and such Successor Owner shall provide
to Grantee reasonable evidence that the Casualty Restoration relating to that portion of the
work has been paid for in full.
(iv) If the amount of any Net Insurance Proceeds shall exceed the entire
cost of the Casualty Restoration, such excess, upon completion of the Casualty
Restoration, shall be paid to and retained by such Successor Owner (subject to the
provisions of any Facility Mortgage).
13. CONDEMNATION.
(a) Substantial Taking. If all or Substantially All of the Garage is taken for
any public or quasi-public purpose by any lawful power or authority by the exercise of the
right of condemnation or eminent domain (a "Total Taking"), this Agreement shall remain
in full force and effect until such time as Owner grants or causes to be granted to Grantee
an easement (pursuant to any agreement identical in all material respects to this
30
m: 18170rb 1118
Agreement to be recorded in the Public Records of Dade County, Florida, which easement
is free and clear of all liens and encumbrances not caused by Grantee) in (x) to the extent
available, a parking garage or other covered parking facility or (y) to the extent that a
parking garage or other covered parking facility is not available, surface parking, in each
case within, from the main entrance of the Hotel, the lesser of (I) 1200 feet or (II) the
distance required by the Requirements in order for the Hotel to be in compliance with the
Requirements concerning parking, and with the provision by Owner of appropriate security,
and in the interim Owner shall supply the parking spaces required to be furnished to
Grantee by Owner pursuant to subsection 7(g) hereof, and the Use Fee payable by
Grantee hereunder shall be apportioned and paid to the Date of Taking and the Garage
Usage Payment payable by Owner hereunder shall be apportioned and paid to the Date
of Taking. In the event Owner provides an easement pursuant to this subsection 13(a)
in a location other than the Garage, Owner shall comply with subsections 7(c), (d), (e)
and (f) hereof with respect to such covered pal'king facility or surface parking at the new
location; provided however, Owner shall not be required to provide any retail space as
referenced in such subsection 7(c). Notwithstanding the foregoing, if there is a Total
Taking and the Owner following such Total Taking uses the Facility for purposes which
include providing parking for Vehicles, such Owner shall be bound by and must comply
with this Agreement as a Successor Owner.
(b) Definitions.
(i) "Date of Taking" means the earlier of (1) the date on which
actual posse~sion of all or Substantially All of the Garage, or any part thereof, as the case
may be, is acquired by any lawful power or authority pursuant to the provisions of
applicable law or (2) the date on which title to all or Substantially All of the Garage, or any
part thereof, as the case may be, has vested in any lawful authority pursuant to the
provisions of applicable law.
(ii) "Substantially All of the Garage" means such portion of the
Garage as, when so taken, would leave, in the good faith determination of the parties
hereto, a balance of the Garage that, due either to the area so taken or the location of the
part so taken in relation to the part not so taken, would not, under economic conditions,
physical constraints, zoning laws, building regulations and other Requirements then
existing, readily accommodate a new or reconstructed building or buildings and other
improvements of a type fully comparable to the Garage which contains 174 Parking
Spaces for the Priority Use of Grantee.
(c) Less than a Substantial Taking. If less than Substantially All of the
Garage is taken for any public or quasi-public purpose by any lawful power or authority by
the exercise of the right of condemnation or eminent domain (a "Partial Taking"), this
Agreement shall continue for the remainder of the Term (subject to subsection 13(d)
below) without diminution of any of Grantee's obligations hereunder, but with (x) a fair and
31
m: 1817m~ 1119
equitable abatement of the Use Fee and (y) a fair and equitable reduction of the
"$1,200,000" amount referred to in subsection 4(b) hereof and the "$313.200" and
"$156,600" amounts referred to in subsection 4(c) hereof.
(d) Obligation to Restore the Garage. If less than Substantially All of the
Garage is taken as provided in subsection 13(c) hereof, then (x) if the Agency, the City
or any instrumentality of the Agency or the City is the Owner, such Owner shall, in
accordance with the provisions of this Section 13 and the plans and specifications used
for the initial construction of the Facility, restore the Garage to the extent necessary to
provide 174 Parking Spaces (and such additional Parking Spaces as may be required
under any other parking easements, use agreements or equivalent agreements then
affecting the Facility (none of which may provide for rights to Parking Spaces other than
the Excess Parking Spaces)) or (y) if a Successor Owner is the Owner, such Owner shall,
in accordance with the provisions of this Sectiorr13 and the plans and specifications used
for the initial construction of the Facility, restore the Garage to the extent necessary to
provide 803 Parking Spaces (to the extent feasible under Requirements), in each case so
that the Facility (excluding the Retail Space) is substantially equal in quality to the original
quality of the Facility (a "Condemnation Restoration"), regardless of whether any
condemnation award shall be sufficient therefor. Nothing in this subsection 13(d) shall
affect the Easement or Priority Use of 174 Parking Spaces or other obligations of Owner
under this Agreement.
(e) Commencement of Construction Work. Owner shall commence the
construction work in connection with a Condemnation Restoration within ninety (90) days
after receipt of the condemnation award arising from the damage or destruction that
caused the need for such Condemnation Restoration and shall diligently pursue the
completion of such Condemnation Restoration.
(f) Temporary Taking. If the temporary use of the whole or any portion
of the Garage is taken for a public or quasi-public purpose by a lawful power or authority
by the exercise of the right of condemnation or eminent domain, Owner shall give Grantee
notice within five (5) business days thereof. The Term shall not be reduced or affected in
any way by reason of such temporary taking and Owner shall supply the Parking Spaces
required to be furnished to Grantee by Owner pursuant to subsection 7(9) hereof and
Grantee shall continue to pay to Owner the Use Fee as reduced by the Facility Usage
Payment with an equitable reduction or abatement of the Use Fee; provided, however, if
such temporary taking is for a period in excess of one hundred twenty (120) days, then
such taking shall be deemed a permanent taking and the provisions of subsections 13(a)
and 13(c) hereof, as applicable, shall apply.
(g) Intention of Parties. The existence of any present or future law or
statute notwithstanding, Owner (i) shall not consent to any condemnation or taking of all
or any portion of the Facility Premises and (ii) hereby waives, to the extent permitted by
32
~~t: '8170n 1120
Requirements, all rights to quit or surrender the Garage or any part thereof by reason of
any condemnation or taking of less than Substantially All of the Garage.
(h) Restoration Funds.
(i) From and after the date that the Facility is owned by a
Successor Owner, the Net Condemnation Award shall be deposited with any Facility
Mortgagee that is an Institutional Lender, or, if none, with an Institutional Lender mutually
acceptable to such Successor Owner and Grantee pursuant to a mutually acceptable trust
agreement. Provided such Successor Owner is conducting the Condemnation Restoration
in accordance with this Agreement, the Net Condemnation Award shall be paid out from
time to time as the Condemnation Restoration progresses, upon the written request of such
Successor Owner, which request shall be accompanied by the following:
~
, (A) A certificate signed by such Successor Owner and the architect
or engineer in charge of the Condemnation Restoration, dated not more than fifteen (15)
days prior to such request, setting forth:
(1) that the sum then requested either has been paid by
such Successor Owner or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other Persons who have rendered
services or furnished materials for the work specified, and stating that no part
of such expenditures has been or is being made the basis of any previous
. or then pending request for the withdrawal of the Net Condemnation Award;
(2) a brief description of the services and materials;
(3) that, except for the amount described in subsection
13(h)(i)(A)(1) hereof, there is no outstanding indebtedness actually known
to the Persons signing such certificate, after due inquiry, which is then due
for labor, materials, or services in connection with the Condemnation
Restoration;
(4) that the cost, as estimated by the Persons signing such
certificate, of the work required to complete the Condemnation Restoration
does not exceed the amount of the remaining Net Condemnation Award,
plus any amount deposited by such Successor Owner (with the Person
holding the Net Condemnation Award) to defray the expenses of the
Condemnation Restoration; and
(5) that the work described has been completed in
accordance with the plans and specifications applicable thereto, in a good
and workerlike manner and in accordance with all Requirements;
33
~tb: 1817or~ 1121
(B) Lien waivers, title company reports or such other evidence to
the effect that there has not been filed with respect to the Facility, any vendor's,
mechanic's, laborer's, materialman's or other lien which has not been discharged of record,
except such as will be discharged by payment of the amount then requested; and
(C) Such other documentation regarding the Condemnation
Restoration as any Facility Mortgagee or such other Institutional Lender shall reasonably
require.
(ii) Such Successor Owner shall, prior to the commencement of the
Condemnation Restoration, furnish to Grantee an estimate of the total cost of the
Condemnation Restoration certified by the architect or engineer in charge of the
Condemnation Restoration. If such cost estimate or any subsequent estimate provided
pursuant to subsection 13(h)(i)(A)(4) shall ~how that the cost of completing the
Condemnation Restoration is in excess of the amount of the Net Condemnation Award
then ava,i"able, such Successor Owner shall promptly deposit with the holder of the Net
Condemnation Award an amount equal to such excess. The amount so deposited shall
be included in the Net Condemnation Award for all purposes of this Section 13.
(iii) Upon compliance by such Successor Owner with the foregoing
provisions ofthis Section 13, the holder of the Net Condemnation Award shall pay to such
Successor Owner or the Persons named in the certificate referred to in subsection
13(h)(i)(A), from the Net Condemnation Award, an amount equal to ninety percent (90%)
of the cost of the Condemnation Restoration which is evidenced by the request. At the
completion of each contract or subcontract in connection with the Condemnation
Restoration, the balance of the Net Condemnation Award relating to that portion of the
work, to the extent of and as required to complete the payment of Condemnation
Restoration costs relating to that portion of the work, shall be paid to such Successor
Owner and such Successor Owner shall, promptly following the release of the retainage,
provide to Grantee reasonable evidence that the Condemnation Restoration relating to that
portion of the work has been paid for in full.
(iv) If the amount of any Net Condemnation Award shall exceed the
entire cost of the Condemnation Restoration, such excess, upon completion of the
Condemnation Restoration, shall be paid to and retained by such Successor Owner.
14. INSURANCE REQUIREMENTS.
(a) Liability Insurance. At all times during the Term, Owner, at its sole
cost and expense, shall carry or cause to be carried by Garage Operator (or any other
Person) insurance against liability with respect to the Garage and the operations related
thereto, whether conducted on or off the Garage of not less than ten million dollars
($10,000,000) per occurrence (subject to adjustment for inflation), combined single limit,
34
~~u 8170r~ 1122
with a deductible determined by Owner of not more than $10,000 per occurrence, subject
to adjustment for inflation and designating Owner as a named insured. The insurance
required under this subsection 14(a) shall include the following: (i) Garagekeeper's legal
liability coverage in an amount not less than five million dollars ($5,000,000.00) (subject
to adjustment for inflation) per occurrence, with a deductible determined by Owner, but not
more than one hundred thousand dollars ($100,000.00) per loss, subject to adjustment for
inflation; and (ii) automobile liability insurance covering any automobile owned, not owned
or hired in an amount not less than ten million dollars ($10,000,000.00) (subject to
adjustment for inflation) per occurrence, with a deductible determined by Owner of not
more than one hundred thousand dollars ($100,000.00) 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, except for the provisions regarding
Recognized Mortgagees and except that all determinations shall be made by Owner
(except for the determination made pursuant to'Section 7.7(m) of the Lease, which shall
be made.by Owner subject to the approval of Grantee and the City).
(b) Prooerty Insurance. At all times during the Term, Owner at its sole
cost and expense, shall carry or cause to be carried "All Risk" (or its equivalent) property
damage insurance protecting Owner against loss to the Facility Premises with replacement
cost valuation and a stipulated value endorsement in an amount not less than the Full
Replacement Value (as determined in this Section 14) and meeting all of the other
standards, limits, minimums and requirements described in Section 7.8 of the Lease,
except that (i) the provisions regarding Recognized Mortgagees shall be deemed to run
in favor of and refer to Facility Mortgagees rather than Recognized Mortgagees, (ii) all
determinations shall be made by Owner (except for the determination made pursuant to
Section 7.8(d) of the Lease, which shall be made by Owner subject to the approval of
Grantee and the City) and (iii) the reference in Section 7.8(n) of the Lease to "hotels of
similar size and location" shall be deemed to be a reference to garages of similar size and
location to the Facility.
(c) Other Insurance. At all times during the Term, Owner shall procure
and carry insurance with respect to the Facility Premises meeting all of the standards,
limits, minimums, and requirements described in Section 7.9 of the Lease, except that (i)
the provisions regarding Recognized Mortgagees shall be deemed to run in favor of and
refer to Facility Mortgagees rather than Recognized Mortgagees, (ii) the amount of
Business Interruption Insurance shall be based on Gross Parking Revenues, (iii) all
Business Interruption proceeds shall be paid only to Owner, (iv) all determinations shall be
made by Owner (except for the determination made pursuant to Section 7.9(a)(v) of the
Lease, which shall be made by Owner subject to the approval of Grantee and the City) and
(v) the reference in Section 7.9(viii) of the Lease to "hotels of similar size and location"
shall be deemed to be a reference to garages of similar size and location to the Facility.
35
~tt: 1817or~ 1123
(d) Construction Insurance. Prior to the commencement of any
construction work, Owner shall, with respect to the Facility Premises, procure or cause to
be procured, and after such dates shall carry or cause to be carried, until final completion
of such work, in addition to and not in lieu of the insurance required by the foregoing
subsections (a), (b), and (c), the insurance described in Section 7.10 of the Lease, except
that (i) the provisions regarding Recognized Mortgagees shall be deemed to run in favor
of and refer to Facility Mortgagees rather than Recognized Mortgagees and (ii) all
determinations shall be made by Owner (except for the determinations regarding
deductibles, which shall be made by Owner subject to the approval of Grantee and the
City).
(e) General Provisions Aoolicable to All Policies.
(i) Insurance ComDanies. All of the insurance policies required by
this Section 14 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 "A:X" or better or another comparable rating acceptable to Owner and the City,
considering market conditions.
(ii) Reauired Forms. All forms and coverages referred to in or
required by this Section 14 shall be those used by the Insurance Services Organization
(ISO) or equivalent forms satisfactory to Owner and the City.
(iii) Required Certificates. Certificates of insurance evidencing the
issuance of all insurance required by this Section 14, describing the coverage and
providing for thirty (30) days prior notice to Grantee and the City by the insurance company
of cancellation or non-renewal, shall be delivered to Grantee and the City, and 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 the
original signature of an officer or duly authorized agent having the authority to issue the
certificate. During the performance of any construction work, Owner shall deliver to
Grantee and the City an entire duplicate original or a copy (certified by Owner to be true,
complete and correct) of each policy. At all other times, Owner shall deliver to Grantee and
the City an entire duplicate original or a copy (certified by Owner to be true, complete and
correct) of each policy within a reasonable period of time after request therefor by Grantee
or the City. Owner shall notify Grantee and the City 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 Owner of
any such change; provided, however, that no such change may reduce or otherwise modify
the insurance coverage required under this Agreement.
36
~~t: 18170r~ 1124
(iv) Required Insurance Policy Clauses. Each policy of insurance
required to be carried pursuant to the provisions of this Section 14 and each certificate
issued by or on behalf of the insurer shall contain (i) a provision stating substantially that
no act or omission of Owner (or any other Person) or any use or occupation of the Facility
Premises for purposes more hazardous than are permitted by the policy shall invalidate the
policy as to Grantee or affect or limit the obligation of the insurance company to pay to
Grantee the amount of any loss sustained and that no act or omission of Grantee shall
invalidate the policy as to Owner or affect or limit the obligation of the insurance company
to pay to Owner the amount of any loss; (ii) a written waiver of the right of subrogation
against all of the named insureds and additional insureds, including Grantee and any
Facility Mortgagee named in such policy, with respect to losses payable 'under such policy;
(iii) with respect to each policy of liability insurance, a clause designating Grantee, its
Affiliates, the City, any Recognized Mortgagee and any Facility Mortgagee as additional
insureds; (iv) with respect to each policy of property insurance or Builder's Risk Insurance,
a clause designating Grantee, the City, any Recognized Mortgagee and any Facility
Mortgagee as loss payees, as their interests may appear, for losses in excess of $250,000,
adjusted for inflation; and (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 Grantee, the City, the holder of any Facility Mortgage and the holder of
any Recognized Mortgage named 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.
(v) Separate Insurance. Owner 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 Owner, unless Grantee, its Affiliates, the City, any
Recognized Mortgagee and any Facility Mortgagee are included therein as additional
insureds with respect to liability or unless Grantee, the City, any Facility Mortgagee and
any Recognized Mortgagee are included therein as loss payees with respect to property,
as their interests may appear, with loss payable as in this Agreement provided.
(vi) Duration of Policies. Owner shall procure or cause to be
procured policies for all insurance required by any provision of this Agreement for periods
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, except that Builders' Risk Insurance shall be
renewed only for the term of any construction period.
(vii) 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.
37
m: 1817or~ 1125
(viii) Determination of Replacement Value.
(I) Definition. The current replacement value of the Facility
("Replacement Value") shall be the full cost of replacing the Facility according to
Requirements in effect at that time, including, without limitation, all hard costs of
construction as well as the costs of post-casualty debris removal, and soft costs, including
without limitation, architects', engineers', surveyors', assessors' and other professional fees
and development fees. Upon substantial completion of the Facility, Replacement Value
of the Facility shall be deemed to be an amount equal to the actual costs incurred or
expended in connection with the construction of the Facility as certified by an architect
upon completion of the Facility, including foundations, adjusted for each year after
completion of the Facility in accordance with the percentage change in the Building Index.
If the insurance required by subsection 14(b) above is not sufficient to cover the
Replacement Value, then within fifteen (15) days after such adjustment, said insurance
shall be iQcreased or supplemented to fully cover such Replacement Value. In no event
shall such Replacement Value be reduced by depreciation or obsolescence of the Facility.
(II) Building Index. As used herein, the "Building Index"
shall mean the Marshall and Swift Cost Index or such other published index of construction
costs designated by Owner.
(ix) Additional Interests. All liability policies shall contain a provision
substantially to the effect that the insurance provided under the policy is extended to apply
to Grantee,its Affiliates, the City, any Facility Mortgagee and any Recognized Mortgagee.
Any holder of a Facility Mortgage which, pursuant to such Facility Mortgage, is required to
be named under any of the insurance carried hereunder shall be named under a standard
New York form of mortgagee endorsement or its equivalent.
(x) Waiver by Grantee and Recognized Mortgagees.
Notwithstanding any other provision of this Agreement, (I) upon request of Owner or any
Facility Mortgagee, Grantee and any Recognized Mortgagee shall execute all documents
and take all actions reasonably requested by Owner or any Facility Mortgagee to waive the
rights of Grantee and such Recognized Mortgagee to receive the proceeds under any
insurance policy provided for hereunder, provided that such proceeds are applied in
accordance with this Agreement, and (II) neither Grantee nor any Recognized Mortgagee
shall have the right to adjust any insurance provided for hereunder.
(f) No Reoresentation as to Adequacy 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 Owner hereunder shall not constitute a
representation or warranty by Owner or Grantee that such insurance is in any respect
adequate.
38
~[f: 18170r~ 1126
(g) Blanket or Umbrella Policies. The insurance required to be carried by
Owner pursuant to the provisions of this Agreement may, at the election of Owner, 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, Owner shall furnish
to Grantee and the City certificates of insurance and, upon the request of Grantee or the
City, copies (certified by Owner to be true, complete and correct) of such policies together
with schedules annexed thereto setting forth the amount of insurance applicable to the
Garage.
,. (h) Subleases. All Retail Space leases shall require the tenant to carry
liability insurance naming Owner as named insureds and the City, Grantee, its Affiliates,
any Facility Mortgagee and any Recognized Mortgagee as additional insureds with limits
reasonably prudent under the circumstances.
ill Grantee Fee Mortgagees. If Grantee or any of its permitted
successors or permitted assigns acquires title to the fee interest in the Grantee Land, then
the holder of any mortgage encumbering such fee interest shall have the rights provided
to a Recognized Mortgagee under this Section 14.
15. NO PARTNERSHIP.
Nothing contained in this Agreement shall be deemed or construed to create a
partnership or joint venture of or between Owner and Grantee.
16. NOTICES.
(a) In Writing. Whenever it is provided herein that notice, demand,
request, consent, approval or other communication shall or may be given to, or served
upon, any of the parties by the other (or any Recognized Mortgagee or Facility Mortgagee),
or whenever any of the parties desires to give or serve upon the other any notice, demand,
request, consent, approval or other communication with respect hereto or to the Garage,
each such notice, demand, request, consent, approval or other communication (referred
to in this Section 16 as a "Notice") shall be in writing and shall be effective for any
purpose only if given or served by (i) certified or registered U.S. Mail, postage prepaid,
return receipt requested, (ii) personal delivery with a signed receipt or (Hi) a recognized
national courier service, addressed as follows:
39
m: 18170r~ 1127
If to Grantee:
RDP Royal Palm Hotel Limited Partnership
c/o Peebles Atlantic Development Corporation
Suite 4650
100 S.E. Second Street
Miami, Florida 33131
Attention: R. Donahue Peebles, President
with a copy to:
RDP Royal Palm Hotel Limited Partnership
c/o Peebles Atlantic Development Corporation
2600 Virginia Avenue, N. ~
Suite 606
Washington, D.C. 20037
Attention: S.P. Newell, Executive Vice President
with a copy to:
Holland & Knight LLP
Thirtieth Floor
701 Brickell Avenue
Miami, Florida 33131
Attention: Stuart K. Hoffman, Esq.
If to Owner:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
with copies to:
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach, Florida 33139
and Joel N. Minsker, P.A.
Bloom & Minsker
1401 Brickell Avenue, 7th FI.
Miami, FL 33131
40
~[f: 1817DrD 1128
and to:
Miami Beach Redevelopment Agency
Executive Director
1700 Convention Center Drive
Miami Beach, Florida 33139
with copies to:
Miami Beach Redevelopment Agency and
General Counsel
1700 Convention Center Drive
Miami Beach, Florida 33139
Joel N. Minsker, PA
Bloom & Minsker
1401 Brickell Avenue, 7th FI.
Miami Beach, FL 33131
Any Notice may be given, in the manner provided in this Section 16, (x) on behalf of either
party by its attorneys designated by such party by Notice hereunder, and (y) at the request
of Owner, on its behalf by any Facility Mortgagee designated in such request, and (z) at
the request of Grantee, on its behalf by any Recognized Mortgagee designated in such
request.
(b} Effectiveness. Every Notice shall be effective on the date actually
received, as indicated on the receipt therefor or on the date delivery thereof is refused by
the intended recipient thereof.
(c) References. All references in this Agreement to the "date" of Notice
shall mean the effective date, as provided in the preceding subsection 16(b).
(d) Effect of Grantin<;l or Failure to Grant Aoprovals or Consents. All
consents and approvals which may be given under this Agreement shall, as a condition of
their effectiveness, be in writing. The granting by a party of any consent to or approval of
any act requiring consent or approval under the terms of this Agreement, or the failure on
the part of a party to object to any such action taken without the required consent or
approval, shall not be deemed a waiver by the party whose consent was required of its
right to require such consent or approval for any other act.
(e) Standard. All consents and approvals which may be given by a party
under this Agreement shall not be unreasonably withheld or conditioned by such party and
shall be given or denied within the time period provided, and if no such time period has
been provided, within a reasonable time. Upon disapproval of any request for a consent
or approval, the disapproving party shall, together with Notice of such disapproval, submit
to the requesting party a written statement setting forth with specificity its reasons for such
disapproval.
41
m: 18170n II 29
17. LIABILITY.
(a) Limitation on Liability of Owner and the City. Except as such liability
may be eliminated or reduced by any constitutional, statutory, common law or other
protections afforded to public bodies or governments, including, but not limited to,
sovereign immunity statutes, the liability of Owner and the City, in the aggregate,
(including, without limitation, with respect to gross negligence and willful misconduct) for
damages or otherwise, arising out of or in connection with any breach of this Agreement
or any injury (whether physical (including death), economic or otherwise) incurred in
connection with this Agreement or the Facility Premises, shall be limited to the amount of
$2,000,000, adjusted for inflation, in the aggregate for this Agreement and all of the Project
Agreements. As used in the preceding sentence, the terms "breach" and "injury" shall
include all breaches and injuries arising out of the facts and circumstances resulting in
such breach or injury. Nothing contained hefein shall be deemed to be a waiver or
limitation .of any equitable remedies available to Grantee.
(b) Owner Exculpation. Except for conversion, fraud or willful misconduct
(and then only to the extent such party acted in its proprietary capacity as opposed to its
govemmental capacity, if any), none of the Owner Indemnified Parties (except as provided
in subsection 17(a) hereof with respect to the Agency and the City and any Successor
Owner) shall have any liability (personal or otherwise) hereunder. Nothing contained
herein shall be deemed a waiver or limitation of any equitable remedies available to
Grantee.
(c) No Waiver of Limitation on Liability. Nothing contained in this Section
17 or elsewhere in this Agreement is in any way intended to be a waiver of the limitation
placed upon the Agency's and the City's liability as set forth in Section 768.28, Fla. Stat.,
or of any other constitutional, statutory, common law or other protections afforded to public
bodies or governments; provided, however, that this Section 17 shall not be applicable to
the indemnity of Owner pursuant to subsection 18(c) hereof.
(d) Limitation on Grantee Liability. The liability of Grantee (including,
without limitation, with respect to gross negligence and willful misconduct) for damages or
otherwise, arising out of or in connection with any breach of this Agreement or any injury
(whether physical (including death), economic or otherwise) incurred in connection with this
Agreement or the Facility Premises, shall be limited to the amount of $2,000,000, adjusted
for inflation, in the aggregate for this Agreement and all of the Project Agreements. As
used in the preceding sentence, the terms "breach" or "injury" shall include all breaches
and injuries arising out of the facts and circumstances resulting in such breach or injury.
Nothing contained herein shall be deemed to be a waiver or limitation of any equitable
remedies available to Owner.
42
~~f: 1817or~ 1130
(e) Grantee Exculpation. Except for conversion, fraud or willful
misconduct, none of the Grantee Indemnified Parties (except as provided in subsection
17(d) hereof with respect to Grantee) shall have any liability (personal or otherwise)
hereunder. Nothing contained herein shall be deemed to be a waiver or limitation of any
equitable remedies available to Owner.
(f) No Punitive Damages. Neither Owner, the City nor Grantee shall
be liable to the other for any punitive damages in connection with this Agreement and
Owner, the City and Grantee agree not to seek punitive damages from each other in
connection with any lawsuit or other claim relating to this Agreement.
18. HAZARDOUS MATERIALS
(a) Use of Hazardous Materiars. Owner shall not cause or permit any
Hazardous Material (as defined in the Lease) to be brought on, kept or used in or about
the Facility Premises except as necessary or useful to the operation of the Facility
Premises and in compliance with all Environmental Laws (as defined in the Lease).
(b) Compliance. Owner, at its sole cost and expense (except as may
otherwise be provided in this Agreement), shall comply and cause the Garage Operator
and any lessee of Retail Space to comply with all Environmental Laws with respect to the
use and operation of the Facility Premises.
. (c) Indemnification. Owner hereby indemnifies and holds harmless the
Grantee Indemnified Parties from and against any and all Environmental Damages (as
defined in the Lease) resulting from Environmental Conditions (as defined in the Lease)
existing at the Facility prior to, 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 Grantee), even if such claims, suits or proceedings are
groundless, false or fraudulent, 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 any of the Grantee Indemnified Parties.
(d) Survival. The provisions of this Section 18 shall survive the
termination of this Agreement.
19. INDEMNIFICATION AND DEFENSE OF CLAIM
(a) Indemnification.
(i) Owner shall indemnify and hold the Grantee Indemnified Parties
harmless from all loss, cost, liability, claim, damage and expense (including, without
limitation, reasonable attorneys' fees and disbursements), penalties and fines, incurred
43
~tt-.\ 8170n I \ 3 \
in connection with claims by a Person against a Grantee Indemnified Party arising from any
acts, omissions or negligence of Owner made in its proprietary capacity (with respect to
an Owner that is the Agency, the City or any instrumentality of the Agency or the City) or
any Person claiming through or under Owner (in its proprietary capacity only (with respect
to an Owner that is the Agency, the City or any instrumentality of the Agency or the City)),
or of the contractors, agents, servants, employees, guests, invitees or licensees of Owner
(in its proprietary capacity only (with respect to an Owner that is the Agency, the City or
any instrumentality of the Agency or the City)) or any Person claiming through or under
such Person, in each case to the extent in, about or concerning the Facility Premises either
during, or after the termination or expiration of, the Term, except to the extent any of the
foregoing is caused by the gross negligence or willful misconduct of any of the Grantee
Indemnified Parties.
(ii) Grantee shall indemfiify and hold the Owner Indemnified Parties
harmless, from all loss, cost, liability, claim, damage and expense (including, without
limitation, reasonable attorneys' fees and disbursements), penalties and fines, incurred in
connection with claims by a Person against an Owner Indemnified Party arising from any
acts, omissions or negligence of Grantee in each case to the extent in, about or concerning
the Facility Premises either during, or after the termination or expiration of, the term of this
Agreement, except to the extent any of the foregoing is caused by the gross negligence
or willful misconduct of any of the Owner Indemnified Parties.
(b) Contractual Liability.
(i) The obligations of Grantee under this Section 19 or Section
17 hereof shall not be affected in any way by the absence or presence of insurance
. coverage (or any limitation thereon, including any statutory limitations with respect to
Worker's Compensation insurance) or by the failure or refusal of any insurance carrier to
perform an obligation on its part under insurance policies affecting the Facility; provided,
however, that if Owner actually receives any proceeds of Grantee's insurance with respect
to an obligation of Grantee under this Section 19, the amount thereof shall be credited
against, and applied to reduce, any amounts paid and/or payable hereunder by Grantee
with respect to such obligation.
(ii) The obligations of Owner under this Section 19 or Section 17
hereof shall not be affected in any way by the presence or absence of insurance coverage
(or any limitation thereon, including any statutory limitations with respect to Workers'
Compensation insurance), or by the failure or refusal of any insurance carrier to perform
an obligation on its part under insurance policies affecting the Facility; provided, however,
that if Grantee actually receives any proceeds of Owner's insurance with r;~spect to an
obligation of Owner under this Section 19, the amount thereof shall be credited against,
and applied to reduce, any amounts paid and/or payable hereunder by Owner with respect
to such obligation.
44
~[~: 18170r~ 1132
(c) Defense of Claim. Etc.
(i) If any claim, action or proceeding is made or brought against
any Owner Indemnified Party by reason of any event to which reference is made in
subsection 19{a)(ii) or Section 17 hereof, then, upon demand by Owner or such other
Owner Indemnified Party, Grantee shall either resist, defend or satisfy such claim, action
or proceeding in such Owner Indemnified Party's name, by the attorneys for, or approved
by, Grantee's insurance carrier (if such claim, action or proceeding is covered by
insurance) or such other attorneys as Owner shall reasonably approve. The foregoing
notwithstanding, such Owner Indemnified Party may at its own expense engage its own
attorneys to defend such Owner Indemnified Party, or to assist such Owner Indemnified
Party in such Owner Indemnified Party's defense of such claim, action or proceeding, as
the case may be.
(ii) If any claim, action or proceeding is made or brought against
any Grantee Indemnified Party by reason of any event to which reference is made in
subsection 19{a){i), or Section 17 hereof, then, upon demand by such Grantee
Indemnified Party, Owner shall either resist, defend or satisfy such claim, action or
proceeding in such Grantee Indemnified Party's name, by the attorneys for, or approved
by, Owner's insurance carrier (if such claim, action or proceeding is covered by insurance)
or by such other attorneys as Grantee shall reasonably approve. The foregoing
notwithstanding, such Grantee Indemnified Party may at its own expense engage its own
attorneys to defend such Grantee Indemnified Party, or to assist such Grantee Indemnified
Party in such Grantee Indemnified Party's defense of such claim, action or proceeding, as
the case may be.
(d) Notification and Payment.
(i) Each Owner Indemnified Party shall promptly notify Grantee of
the imposition of, incurrence by or assertion against such Owner Indemnified Party of any
cost or expense as to which Grantee has agreed to indemnify such Owner Indemnified
Party pursuant to the provisions of this Section 19. Grantee agrees to pay such Owner
Indemnified Party all amounts due under this Section 19 within sixty (60) days after receipt
of the notice from such Owner Indemnified Party.
(ii) Each Grantee Indemnified Party shall promptly notify Owner of
the imposition of, incurrence by or assertion against such Grantee Indemnified Party of any'
cost or expense as to which Owner has agreed to indemnify such Grantee Indemnified
Party pursuant to the provisions of this Section 19. Owner agrees to pay Grantee
Indemnified Party all amounts due under this Section 19 within sixty (60) days after receipt
of the notice from such Grantee Indemnified Party.
45
m: \ 8170n I \ 33
(e) Survival. The provisions of this Section 19 shall survive the
termination of this Agreement.
20. INVALIDITY OF CERTAIN PROVISIONS
If any provision of this Agreement or the application thereof to any Person or
circumstances 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 Persons or circumstances other than those as 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.
21. EASEMENT AND COVENANTS RUN WITH LAND
The easements, covenants, obligations and restrictions granted under the terms of
this Agreement are appurtenant to the Land and the Grantee Land, and such easements,
covenants, obligations and restrictions shall run with the ownership of such parcels of land,
and shall be binding upon and inure to the benefit to the parties hereto and their respective
successors, assigns, employees, agents and personal representatives. The granting of
the Easement herein is intended to create a property right in Grantee which cannot be
eliminated or impaired under federal or state law nor be deemed property of the estate in
a bankruptcy of the Agency or the City or any Successor Owner. The covenants,
restrictions and obligations set forth in this Agreement are integrally related to the grant
and maintenance of the Easement hereunder and the Lease.
22. NO THIRD PARTY BENEFICIARY
No Permitted User of any parking space in the Garage shall be deemed to be in
privity with the Owner under this Agreement or to be a third party beneficiary to any rights
which the Owner may have granted to Grantee hereunder as a result of such user
receiving parking rights in the Garage from Grantee as permitted hereunder. Without in
any way limiting the foregoing provisions of this Section 22, nothing in this Agreement
shall confer upon any Person, other than the parties hereto and their respective
successors and assigns, any rights or remedies under or by reason of this Agreement;
provided, however, that a Facility Mortgagee or its Designee and a Recognized Mortgagee
or its Recognized Mortgagee Designee shall be third party beneficiaries hereunder to the
extent same are granted rights hereunder.
23. APPLICABLE LAW; EXCLUSIVE VENUE.
This Agreement and the rights and obligations of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of Florida, both
substantive and remedial, without reference to principles of conflict of laws. The exclusive
venue for any litigation or other dispute arising hereunder shall be Dade County, Florida.
46
~tk \ 8170n 1 \34
24. ENTIRE AGREEMENT; NO WAIVER
This Agreement shall constitute the entire agreement between the parties as to the
subject matter hereof. Notwithstanding anything to the contrary set forth in this Agreement,
the terms of this Agreement shall supersede the terms of that certain Letter of Intent with
respect to the development and operation of the Improvements dated March 5, 1997,
executed by the Agency, the City, RDP Royal Palm Hotel Limited Company and RDP
Shorecrest Hotel Limited Company, and any replacements, substitutions, restatements or
amendments thereof. No covenant, agreement, term or condition of this Agreement shall
be changed, modified, altered, waived or terminated except by a written instrument of
change, modification, alteration, waiver or termination executed by Grantee and the Owner.
No waiver of any default shall affect or alter this Agreement, but each and every covenant,
agreement, term and condition of this Agreement shall continue in full force and effect with
respect to any other then existing or subsequent default thereof. This Agreement may be
executed in counterparts, each of which shall be deemed an original but all of which
together shall represent one instrument.
25. RECORDATION
Grantee shall have the right to record this Agreement in the land records pertaining
to the Garage' and shall pay and discharge all costs, fees and taxes in connection
therewith.
26. . ADDITIONAL PHASE OF FACILITY
The Agency will ensure that the development of the existing City-owned parking lot
on the north side of 16th Street between Collins and Washington Avenues in Miami Beach,
Florida will be compatible with and enhance the Hotel and its vicinity.
27. TERMS DEFINED IN ANOTHER AGREEMENT
Definitions in any Project Agreement or in the Garage Development Agreement of
terms in this Ag reement shall survive the termination of the Project Agreement or Garage
Development Agreement, as applicable.
28. REFERENCES
(a) Captions. The captions of this Agreement are for the purpose of
convenience of reference only, and in no way define, limit or describe the scope or intent
of this Agreement or in any way affect this Agreement.
(b) Table of Contents. The Table of Contents is for the purpose of
convenience of reference only, and is not to be deemed or construed in any way as part
of this Agreement.
47
~tt \ 8 \ 70n \ \ 35
(c) Reference to Party. The use herein of the neuter pronoun in any
reference to any party hereto shall be deemed to include any individual party hereto and
the use herein of the words "successors and assigns" or "successors or assigns" of
any party hereto shall be deemed to include the heirs, legal representatives and assigns
of any individual party hereto.
(d) Agency's and City's Governmental Caoacity. Nothing in this
Agreement or in the 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 or City
in the discharge of its police or governmental power.
(e) Reference to "herein", "hereunder". etc. All references in this
Agreement to the terms "herein", "hereunder" and words of similar import shall refer to
this Agreement, as distinguished from the paragraph or Section within which such term is
located, unless the context otherwise requires.
29. REMEDIES CUMULATIVE
Each right and remedy of either party provided for in this Agreement shall be
cumulative and shall be in addition to every other right or remedy provided for in this
Agreement or now or hereafter existing at law or in equity or by statute or otherwise, except
as otherwise expressly limited by the terms of this Agreement, and the exercise or
beginning of the exercise by a party of anyone or more of the rights or remedies provided
for in this Agreement or now or hereafter existing at law or in equity or by statute or
otherwise, except as otherwise expressly limited by the terms of this Agreement, shall not
preclude the simultaneous or later exercise by such party of any or all other rights or
remedies provided for in this Agreement or now or hereafter existing at law or in equity or
by statute or otherwise, except as otherwise expressly limited by the terms of this
Agreement.
30. PERFORMANCE AT EACH PARTY'S SOLE COST AND EXPENSE
Unless otherwise expressly provided in this Agreement, when any party exercises
any of its rights, or renders or performs any of its obligations hereunder, such party shall
do so at its sole cost and expense.
31. CORPORATE OBLIGATIONS
It is expressly understood that this Agreement and obligations issued hereunder are
solely corporate obligations, and, except as otherwise provided in Section 17, that no
personal liability will attach to, or is or shall be incurred by, the incorporators, stockholders,
partners, members. holders of other ownership interests, officers, directors, elected or
appointed officials (including, without limitation, the Chairman and Members of the Agency,
48
m: 1817or~ 1136
the Mayor and Commissioners of the City and the members Of any other governing body
of the owner of the Facility) or employees, as such, of the Agency or any other Owner of
the Facility Premises or Grantee, or of any successor corporation, partnership, limited
liability company or other entity, or any of them, under or by reason of the obligations,
covenants or agreements contained in this Agreement or implied therefrom; and, except
as otherwise provided in Section 17, that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, member, partner, holder of other
ownership interest, officer, director, elected or appointed official (including, without
limitation, the Chairman and any Member of the Agency, the Mayor and Commissioners
of the City and the members of any other governing body of the owner of the Facility) or
employee, as such, or under or by reason of the obligations, covenants or agreements
contained in this Agreement or implied therefrom, are expressly waived and released as
a condition of, and as a consideration for, the execution of this Agreement.
32: NON LIABILITY OF OFFICIALS AND EMPLOYEES
Except as otherwise provided in Section 17, no member, stockholder, partner,
holder of other ownership interest, officer, director, official or employee of the Agency or
the City shall be personally liable to Grantee, or any successor in interest, in the event of
any default or breach by the Agency or for any amount or obligation which may become
due to Grantee or any successor under the terms of this Agreement; and, except as
otherwise provided in Section 17, any and all such personal liability, either at common law
or in equity or by constitution or statute, of, and any and all such rights and claims against,
every such Person, or under or by reason of the obligations, covenants or agreements
contained in this Agreement or implied therefrom, are expressly waived and released as
a condition of, and as a consideration for, the execution of this Agreement.
33. CONFLICT OF INTEREST
Grantee represents and warrants that, to the best of its actual knowledge, no
member, official or employee of the Agency or the City 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. Grantee represents and warrants that, to the best of its
knowledge, no officer, agent, employee or representative of the City or the Agency has
received any payment or other consideration for the making of this Agreement, directly or
indirectly from Grantee. Grantee represents and warrants that it has not been paid or
given, and will not payor give, any third person any money or other consideration for
obtaining this Agreement, other than normal costs of conducting business and costs of
professional services such as architects, engineers, and attorneys. Grantee acknowledges
that Owner is relying upon the foregoing representations and warranties in entering into
this Agreement and would not enter into this Agreement absent the same.
49
m: 1 tH (uru II J{
34. TIME PERIODS
Any time periods in this Agreement of less than thirty (30) days shall be deemed to
be computed based on business days (regardless of whether any such time period is
already designated as being computed based on business days). In addition, any time
period which shall end on a day other than a business day shall be deemed to extend to
the next business day.
35. INFLATION ADJUSTMENT
Unless otherwise expressly provided hereunder, any dollar amount described in this
Agreement as "adjusted for inflation" or "subject to adjustment for inflation" (or words
of similar import) shall be adjusted by multiplying such amount by a fraction, the numerator
of which shall be the GDP Implicit Price Deflator Index for the calendar year immediately
preceding the date of such adjustment, and the denominator of which shall be the GDP
Implicit Price Deflator Index for the calendar year during which the Hotel Opening Date
occurred. All amounts subject to adjustment hereunder shall be adjusted effective as of
January 1 of each year pursuant to the formula described above. If the GDP Implicit Price
Deflator Index ceases to be published, and there is no successor thereto, such other
reasonably similar index as Owner and Grantee mutually designate shall be substituted for
the GDP Implidt Price Deflator Index.
36. LATE CHARGES
If either party hereto shall fail to make any payment required hereunder within thirty
(30) days after the same shall be due, the late payment shall bear interest from the date
due until the date paid at a rate equal to the Late Charge Rate. All interest payable under
this Section 36 shall be due and payable within fifteen (15) days following demand
therefor.
50
~tt..1817or~' 138
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names by their duly authorized representatives and delivered as their act
and deed, intending to be legally bound by its terms and provisions.
RDP Royal Palm Hotel Limited Partnershi"p," . -'1. r fr'..,
a Florida limited partnership .....;...+~.~,: ......
'- .'c. ,-" ,/..
By: PADC ~ospitality Corporation I, ~ ~.i~~~~;{ ,;)
corporation, as General Partner ". y \~.,) ~\.~.,
'i""J~' .,'
. .1./ J:l~ .~.
WITNESSES:
~e~~
Date: 5/~/'1i
C~Q~
Print Name: A'#a.J~/V.r/ .~
. Date: 4u~r
STATE OF FLORIDA )
)ss:
COUNTY OF DADE )
Date: ~ a-?, JCf'if
. .
The foregoing instrument was acknowledged before me this ;;.y day of
~"- , 1998, by R. Donahue Peebles, as President of PADC Hospitality
~ Florida corporation, as General Partner of RDP ROYAL PALM HOTEL
LIMITED PARTNERSHIP, a Florida limited partnership, on behalf of such partnership. He
is personally known to me or produced a v . Florida driver's license as identification.
My Commission expires:
Notary Public, tate of Florida r _ _./
Print Name: ~A(A- C, ~
OFFICIAL NOTARY SEAL
BARBARA C FERRER
NOTARY PUBUC STATE OF FLORIDA
COMMISSION NO. CC410&40
MY COMMISSION EXP. ocr. 21998
51
~tt:' 8' 70PGl '39
Date:
&/yf!Cff
I
MIAMI BEACH REDEVELOPMENT AGENCY
::lorida PUb;;$;torporate and POlitiC...
Neisen O. Kasdin ., ~ L I) p. ;~>'"
Chairman. :,~' "' \1. .t J '.'--::'.
..../ <'... ~ ,"" .
: -< C') c: :
t;./1-f /, P :. ~ ~~ ;;
Date: _ L " .J,' rP~.\:
-_, ,) .....:1 .' ..,.
,I I) - ....'.:..LJ ,:
"" I " .,; \ '.,. ,.....
. ~'. - j j'" ~,I' ~\.
",' 1",1'
ATTEST:
By:
~t fGUck
Robert Parcher
Secretary
[SEAL]
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
STATE OF FLORIDA
)
)ss:
)
t1JilibJL
Red e p entAgency
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Date
COUNlY OF DADE
The foregoing instrument was acknowledged before me this ~ day of
-e ~ ,1998, by Neisen O. Kasdin, as Chairman, and Robert Parcher, as
ecret , of the MIAMI BEACH REDEVELOPMENT AGENCY, a public body corporate
and politic, on behalf of such public body. They are personally known to me or produced
valid Florida driver's licenses as identification.
~()~
Notary Public,L ~t~~e ~! !Iorida ,;: _ _ _ ./
PrintName:~ C...~
My Commission expires:
OFFICIAL NOTARY SEAL
BARBARA C FERRER
NOTARY PUBUC srATE OF FLORIDA
COMMISSION NO. CC410840
MY COMMISSION EXP. ocr. 2.199b
52
~~~: \ 8 \ 70n' "40
Exhibit A
Legal Description of Grantee Land
S3
m: 18170nl l'4l
EXHIBIT A
DESCRIPTION OF THE LAND
RP LAND
The South 12.65 feet (measured along the lot line) of Lots 7 and 14, all of Lots 6
and 15 and the North 10.0 feet (measured along the lot line) of Lots 5 and 16, all
in Block 56, of FISHER'S FIRST SUBDMSION OF ALTON BEACH, according
to the plat thereof, as recorded in Plat Book 2, at Page 77, of the Public Records
of Dade County, Florida, together with that certain parcel of land lying East and
adjacent to the above described parcel; said parcel bounded on the South by the
South line of the above described parcel extended Easterly; bounded on the North
by the North line of the above described parcel extended Easterly; bounded on the
East by the Erosion Control Line of the AtlaIftic Ocean and bounded on the West
by the East line of the above mentioned Block 56.
SHORECREST LAND
The South 40.00 feet (measured along the lot line) of Lots 5 and 16 and the North
one-half of Lots 4 and 17, all in Block 56, of FISHER'S FIRST SUBDMSION
OF ALTON BEACH, according to the plat thereof, as recorded in Plat Book 2,
at Page 77, of the Public Records of Dade County, Florida, together with that
certain parcel of land lying East and adjacent to the above described parcel; said
parcel bounded on the South by the South line of the above described parcel
extended Easterly; bounded on the North by the North line of the above described
parcel extended Easterly; bounded on the East by the Erosion Control Line of the
Atlantic Ocean and bounded on the West by the East line of the above mentioned
Block 56.
All lands described above located, lying and being in Section 34, Township 53 South, Range 42
East, in the City of Miami Beach, Dade County, Florida.
A:\JNM\CMBIGLEASE.EX2(EXECUTlON.2)\S-4-98
Substituted Page 6-18-98
~f~: 18170r~ 1142
Exhibit 8
Legal Description of Land
54
~~t: 1817QrG 11'43
Lots 8,9,10,11,12 and 13, Block 57, Fisher's First Subdivision of Alton Beach,
according to the Plat thereof, as recorded in Plat Book 2, Page 77 of the Public Records
of Dade County, Florida, together with all of 16th Street (Avenue "C"), less and except
the following described parcel:
BEGINNING at the Southwest comer of Block 54 of said Fisher's First Subdivision of
Alton Beach Plat; thence North 880 0' 53" East along the South line of said Block 54, a
distance of 443.08 feet, to the Southeast comer of said Block 54; thence South or 35'
04" West, a distance of 96.26 feet, to a point of cusp with a tangent curve concave to
the Southwest; thence along t.he arc of said curve to the left, having a radius of 25.00
feet and a central angle of 900 00' 00", an arc distance of 39.27 feet, to a point of
tangency; thence North 820 24' 52" West, a distance of 24.75 feet; thence South 880 00'
53" West along a line 8.00 feet North of and parallel with, as measured at right angles to
the North line of Block 57 of said plat, a distan<;.e of 382.18 feet to a point on the
Easterly Right-of-Way line of Washington Avenue; thence North 01059' 11" West along
said Easterly Right-of-Way line, a distance of 62.00 feet to the Southwest corner of said
Block 54 and the Point of beginning.
Said lands lying and being in the City of Miami Beach, Dade County, Florida.
~tt: 18l70n' 144
Exhibit 1
List of Project Agreements
Ground Lease
Hotel Development Agreement
Convention Center Agreement
55
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Exhibit 2
Floor Plans
56
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Exhibit 5(a)
List of Garage Operators
1. USA Parking
P.O. Box 7193
Ft. Lauderdale, Florida 33338
(305) 524-6500
2. Quick Park
Hank Sopher
425 East 61 st Street
New York, New York 10021
(212) 303-4200
3. Apcoa, Inc.
Corporate Headquarters
McDonald Investments Center
800 Superior Avenue
Cleveland, Ohio 44114-2601
(216) 522-0700
4. Central Parking System
Monroe CareJl
2401-21st Avenue South
Suite 200
Nashville, Tennessee 37212
(615) 297-4255
5. Centre City Parking
Michael A. Meyers
2980 McFarlane Road, Suite 203
Coconut Grove, Florida 33133
(305) 461-5200
6. Republic Parking System
Chris J. Howley
Republic Centre
Suite 2000
Chattanooga, Tennessee 37450
(615) 756-2771
57
m: 18170r~ 1154
Exhibit 5(e)
Standards of Quality and Operation for Garage
1. Garage Ooerator. Garage Operator shall acknowledge receipt of a copy of
this Agreement and shall agree that in its management and operation of the Garage
pursuant to the Garage Management Agreement, it will comply with the provisions of this
Agreement, including, without limitation, those provisions granting to Grantee preferential
rights to use 174 Parking Spaces.
2. Consultation with Grantee. On a weekly basis, the General Manager of the
Garage will meet with the Hotel General Manager or his designee 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 provtded by the Hotel so that the Garage will
appear to operate as an amenity of the Hotel.
3. Charges. Garage Operator will establish such mechanisms and procedures,
which may include (i) linking the Garage payment system to the Hotel's computer, as
Grantee may reasonably request, and Grantee shall reimburse Garage Operator for its
reasonable out-of-pocket costs incurred in connection therewith, and (ii) providing for a
Permitted User-validation system. Grantee will remit to Garage Operator on a monthly
basis all such charges actually collected (net of credit card commissions and chargebacks).
4. . Name. Garage Operator will not use the name of the Hotel or any other
trademark, trade name or service mark relating to the Hotel, except as and to the extent
authorized in writing by Grantee.
5. Insurance. Grantee and its Affiliates, the City, any Recognized Mortgagee
and any Facility Mortgagee shall be named as additional insureds on all liability insurance
maintained by the Garage Operator and shall be entitled to certificates of insurance
reflecting such insurance.
6. Emoloyees. All Garage employees shall at all times conduct themselves in
a courteous manner. In the event Grantee reasonably objects to the performance or
conduct of any Garage employee, based on complaints by a Hotel guest or other sufficient
evidence, Garage Operator will review the matter and, if warranted, take appropriate
action.
7. Disclaimer. At Grantee's request, 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 Grantee, informing Garage patrons that the
Garage is not owned or operated by the owner or operator of the Hotel.
58
m: 1817or~ 1155
Exhibit 6(f)
Remedies
1. Mark 174 spaces in the Facility for Grantee's exclusive use, which 174
exclusive spaces shall be designated by the Owner and Grantee working
together in good faith.
2. Cause a licensed and bonded third party towing company to remove
unauthorized vehicles from the marked spaces.
3. Terminate the Garage Operator.
4. Impose fines on or charge penalties to the Garage Operator.
RECOROEiD IN OfRCIAL RECOROS BOO>
OF ~ COUNTY. FLORIDA.
RECORO VfiRIFIEO
HARVEY RUV1N
cURl( CI"lltnT CrlURT
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59
EXHIBIT "C"
CMB Resolution No. 435-2002
RESOLUTION NO. 435-2002
A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE
MIAMI BEACH REDEVELOPMENT AGENCY ADOPTING AND
APPROPRIATING THE OPERATING BUDGET FOR THE FIRST
THREE MONTHS (75 DAYS) OF THE FISCAL YEAR 2002/03, FOR
THE OPERATION OF THE PARKING COMPONENT OF THE
ANCHOR SHOPS AND PARKING AT SOUTH BEACH, SAID
PARKING COMPONENT TO BE OPERATED BY QUIK PARK OF
FLORIDA, INC., UNTIL EXPIRATION OF THE FINAL TERM OF
THE GARAGE FACILITY AGREEMENT BETWEEN THE AGENCY
AND QUlKPARK, ON DECEMBER 14, 2002; AND, TO THE EXTENT
THAT ANEW GARAGE FACILITY AGREEMENT HAS NOT BEEN
EXECUTED BY DECEMBER 14, 2002, AUTHORIZING QUIKPARK
TO CONTINUE OPERATING THE PARKING COMPONENT AT
THE DISCRE1JON OF THE CITY MANAGER, UNTIL SUCH TIME
THAT A NEW AGREEMENT HAS BEEN EXECUTED.
WHEREAS, pursuant to the terms of the Garage Facility Management Agreement
between the Redevelopment Agency (RDA) and Quik Park of Florida, Inc., Quik Park must
submit for approval by the RDA, a proposed annual budget for the operation of the Anchor
Garage; and
WHEREAS, due to the fact the Garage Facility Management Agreement (Agreement)
between the RDA and Quik Park is due to expire on December 14, 2002, Quik Park has only
submitted a budget for the first three months of the fiscal year; and
WHEREAS, Quik Park's revenue projections for the three month period, commencing
October 1 through December 31,2002, are anticipated to increase by approximately 16
percent from actual revenues realized for the same period in FY 2001/02, from $404,403 to
$469,255; and
WHEREAS, Quik Park's operating expenses for the same three month period, are
estimated at $138,473, reflecting a 2 percent increase over actual expenses incurred during
the same period in FY 2001/02; and
WHEREAS, since the Agreement does not provide for a second renewal option, the
City's Finance and Citywide Project Committee, at its May 20, 2002, meeting, considered the
options of transferring the operation of the facility to the City's Parking Department. or
proceeding with a competitive bid process; and
WHEREAS, the Finance and Citywide Projects Committee voted to pursue a
competititve bid process, involving the issuance of a Request for Proposals Proposals (RFP),
to which the City could respond as part of a competitive public-private management bid
process; and
~
WHEREAS, to the extent that the bid process and/or contract negotiations have not
produced a new management agreement by the time Quik Park's contract expires, a letter
agreement shall be structured for the City Manager's approval, providing for Quik Park to
operate the Anchor Garage on a day-to-clay basis under the same terms and conditions.
BE IT DULY RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY, that the Board hereby adopts and appropriates the
operating budget for the first th ree months of the Fiscal Year 2002103, for the operation of the
parking component of the Anchor Shops and Parking Garage, as submitted by Quik Park of
Florida, Inc., until expiration ofthe Final Term of the Garage Facility Agreement between the
Agency and Quik Park, On December 14, 2002.
PASSED AND ADOPTED THIS 25TH DAY OF SEPTMBER, 2002.
AnEST:
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SECRETARY
JMG/CMC/kob
T:\AGENDA\2002Isep25\RDA\Oulk Park Budget Res 0203.doc
STATF: OF FLOR;D~
COUNTY OF DAm:::
I, ROBERT PARCHER, City C!er;( ('f CN of
Miami Beqch Fi:;:ori"'a rl,') ,",;.'"",..,, .,."-,.,,,. 't.lv.,
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APPROYmM1O
FORM&I.ANGUMI
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