Acq. Constr. and Dev. Agreement
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AM> DEVELOPMENT AGREEMENT
FOR THE
PARKING GARAGE PROJECT
AT
SW CORNER OF COLLINS AVENUE
AND 7TH STREET
AMONG
THE
CITY OF MIAMI BEACH,
. THE BALLET VALET
PARKING COMPANY, LTD.
AND
MCCARTHY BROTHERS COMPANY
qCl
Section
ARTICLE I
ARTICLE II
ARTICLE ill
ARTICLE IV
ARTICLE V
ARTICLE VI
ARTICLE VII
ARTICLE VIII
ARTICLE IX
ARTICLE X
ARTICLE XI
ARTICLE xn
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TABI~E OF CONTENTS
~
DEFINITIONS ................................ 3
SELECTION AND RESPONSIBILITY OF THE DEVELOPER .. 9
ENVIRONMENTAL REPORT AND INDEMNIFICATION .... 26
CONSTRUCTION COSTS AND DISBURSEMENT PROCEDURES 32
INSURANCE REQUIREMENTS AFTER CONSTRUCTION ... 43
INDEMNIFICATION, LIMITATION OF LIABll..ITY AND
ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
PUBLIC CHARGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
EVENTS OF DEFAULT AND REMEDIES .............. 52
OPTION TO PURCHASE ......................... 57
RIGHT OF FIRST REFUSAL . . . . . . . . . . . . . . . . . . . . . . . 60
SPECIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 62
NUSCELLANEOUS ............................. 75
i
EXHIBITS
A: Air Space
B: Lower Elevation of Air Space
C: BV Land
D: City Land
E: Draw Request
F: General Contractor's Agreement
G: Narrative and Schedule of GMP Design/Build Costs of Garage
H: GMP Design Development Drawings and Outline Specifications
I: Retail Space Construction Costs
J: Schedule of Performance
K: Request for Disbursement
L: Memorandum of Option
M: Memorandum of Right of First Refusal
N: Easements
0: Ramp Space Description
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ACQUISmON, CONSTRUCTION AND DEVEWPMENT AGREEMENT
THIS ACQUISmON, CONSTRUCTION AND DEVELOPMENT AGREEMENT
(" Agreement") is made as of
, 1994, among CITY OF MIAMI BEACH, a
Florida municipal corporation ("City"), THE BALLET VALET PARKING COMPANY, LTD.,
a Florida limited partnership ("BV"), and MCCARTHY BROTHERS COMPANY, a Missouri
corporation ("GC").
w I 1: M E SSE 1: 11:
WHEREAS, capitalized words and terms used herein shall have the meanings set forth
in Article I hereof, unless defined elsewhere herein or unless the context or use indicates another
or different meaning or intent; and
WHEREAS, the City pursuant to Resolution No. 94-21099 has authorized the purchase
of the City Land, the Air Space and the Easements (collectively the "City Property") and the
execution of one or more agreements in order to accomplish the acquisition of said property, the
construction of the Garage, the operation, maintenance and opening of the Garage to the public;
and
WHEREAS, the GC is a licensed general contractor and is experienced in the
construction of parking structures including those which incorporate other use structures such
as the Retail Space; and
WHEREAS, the GC, as Design Builder and BV as developer have formed a team in
order to provide the Retail Space for BV and the Garage, on a turn-key basis, for the City; and
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WHEREAS, BY owns the BY Land and the City Land and has agreed to convey the City
Land, the Air Space and the Easements to the City, and the City has agreed to acquire same,
pursuant to the terms of the Purchase Agreement and this Agreement; and
WHEREAS, BY has agreed to grant certain other rights to the City with respect to the
BY Land and the Retail Space; and
WHEREAS, a Garage will be constructed within the City Land, the Air Space and
Easements and the City shall have a right of first refusal to purchase the BV Land, including the
Retail Space; and
WHEREAS, BY, the GC and the City are desirous of entering into this Agreement in
order to document in writing the respective rights and obligations of the parties hereto with
respect to the construction of the Garage and with respect to the construction of the Retail Space
to the extent that the construction and operation of the Garage is dependent upon the construction
of the Retail Space. The parties hereto recognize the above rights and obligations will be further
detailed in the various documents referred to herein.
NOW, THEREFORE, in consideration of the covenants herein contained, and for good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
City, BY and the GC mutually covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 " Agreement" shall mean this Acquisition, Construction and Development
Agreement.
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1.2 "Air Space" shall mean all that air space to be acquired in fee simple ownership
by the City from BV in accordance with the Purchase Agreement and delineated in Exhibit "A"
attached hereto and made a part hereof.
1.3 "Architect" shall mean Desman Parking Associates who is under Contract to GC
and their consultants.
1.4 " Authorized Officers" shall mean (a) either the City Manager or an Assistant City
Manager of the City of Miami Beach or any designee of the City Manager on behalf of the City,
and (b) the President of the General Partner of BV on behalf of BV and the President or any
Senior Vice President of the GC on behalf of the GC.
1.5 "BV Land" shall mean the land described on Exhibit "e" attached hereto and by
reference made a part hereof.
1.6 "City Financing Proceeds" shall mean the funds to be utilized by the City to
acquire the City Land, the Air Space and the Easements and to finance the cost of construction
of the Garage and the use and operation thereof which may include the City's funds or the funds
derived from any bond or other debt instrument and may include funds acquired by the City
from the Gulf Breeze Bond Pool and any replacement, renewal or refinancing of any thereof,
all from time to time now or hereafter in effect.
1. 7 "City Land" shall mean the land described on Exhibit "D" attached hereto and
by reference made a part hereof to be acquired in fee simple ownership by the City from BV
in accordance with the Purchase Agreement.
1.8
"City Property" shall mean the City Land, the Air Space and the Easements.
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1.9 "Completion Date" shall mean the date which is 365 days after the Construction
Commencement Date, subject to authorized adjustments as provided herein.
1.10 "Construction Commencement Date" shall mean the date which is no later than
90 days after the date on which the City acquires title to the City Property or when the
foundation permit is issued, whichever is later.
1.11 "Construction Plans And Specifications", when used with reference to the
construction of the Project, means the plans and specifications caused to be prepared for the
construction of the Project by BV and GC, approved by the City and based upon the GMP
Design Development Drawings and the Outline Specifications which include the design
development drawings and outline specifications for the Garage Space and the Retail Space
approved by the City and incorporated herein by reference, as the same may be revised from
time to time during the construction period with the written approval of the City and in
accordance with the provisions of this Agreement and when used with reference to any
modification, repair, restoration or replacement of the Garage, the Retail Space or the Project,
as the same may be revised from time to time in accordance with the provisions of this
Agreement. There shall be separate Construction Plans and specifications for the Garage and
the Retail Space.
1.12 "Consultant tl shall mean a consulting architect or engineer acceptable to the City.
1.13 "Design Team" means the GC together with Desman Parking Associates which
collectively constitute the general contractor and the architectural firm retained by BV as the
team to design and construct the Garage.
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1.14 -Draw Request- shall mean the written request to the City for disbursement of
a portion of the Garage Construction Costs submitted in the form attached hereto and marked
Exhibit "E".
1.15 -Easements- shall mean those Easements described on Exhibit "N" attached
hereto and made a part hereof.
1.16 -Event(s) of Default" or -Default" means those defaults specified in and defined
by Article VI hereof.
1. 17 "Exhibits" means the exhibits attached to this Agreement, as same may be revised
and modified from time to time with the written consent of the parties, all of which are made
a part of this Agreement and are incorporated into this Agreement as though fully set forth in
this Agreement.
1.18 "Garage- shall mean the 646 space (including 7 spaces in loading area) 5-story
garage to be constructed by the GC and BV for the City pursuant to this Agreement.
1.19 "Garage Construction Costs" shall mean those costs set forth on the Schedule of
Construction Costs of the Garage identified on Exhibit "G" attached hereto and any other costs
agreed to among the parties.
1.20 "GMP Garage Construction Costs" shall mean the portion of the Garage
Construction Costs included within the guaranteed maximum cost to the City of $9,800 per
parking space as set forth on Exhibit "G" attached hereto.
1.21 "Garage Construction Plans and Specifications- shall mean the plans and
specifications caused to be prepared for the construction of the Garage by BV and GC, approved
by the City and based upon the GMP Design Development Drawings and the Outline
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Specifications relating to the Garage, as the same may be revised from time to time during the
construction period with the written approval of the City and in accordance with the provisions
of this Agreement and when used with reference to any modification, repair, restoration or
replacement of the Garage, as the same may be revised from time to time in accordance with
the provisions of this Agreement.
1.22 "GC" shall mean MCCARTHY BROTHERS COMPANY.
1.23 "General Contractor's Agreement" shall mean the guaranteed maximum price
turnkey contract with the GC and BV to construct the Garage, identified on Exhibit "F" attached
hereto, not to exceed the guaranteed maximum price ("GMP") and other limitations set forth in
Section 2.1 and further reduced by any reduction or savings in the GMP Garage Construction
Costs as set forth in this Agreement.
1.24 "GMP Design Development Drawings and Outline Specifications" means the
Outline Specifications dated May 20, 1994, supplementing the Outline Specifications dated
March 18, 1994, Drawings Al - A2 dated January 6, 1994, A3, AS - A6, dated March 16,
1994, A4, A7 and A9 dated March 18, 1994, as provided by Desman Associates and
Arquitectonica attached as Exhibit "H" and the AlA - A191, Part 1 and Part 2 dated February
4, 1994 submitted by GC attached as Exhibit "F".
1.25 "Maintenance Agreement" shall mean the detailed agreement of maintenance
responsibility to be entered into between the City and BV as contemplated by Section 2.13, and
to be recorded in the Public Records of Dade County, Florida within 30 days after closing on
the purchase of the City Property.
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1.26 "Parking Agreement" means the agreement to be entered into between BV and the
City within 30 days after closing on the purchase of the City Property relating to the license of
parking spaces in the Garage to BV by the City, as same may be modified or revised from time
to time.
1.27 "Premises" shall mean the BV Land, the Retail Space, the Air Space, the Garage
and the City Land.
1.28 "Project" or "Improvements" shall mean the Garage and the Retail Space.
1.29 "Project Construction Costs" shall mean the sum of the Garage Construction Costs
and the Retail Space Construction Costs.
1.30 "Public Charges" shall mean all real and personal property taxes, all ad valorem
real property taxes, all taxes on rentals, all service charges, water rents and other public charges
which, if not paid, would be a charge, claim or lien upon or against the BV Land, the Air Space
or the Easements, or any part thereof, or upon or against any portion of the Garage constructed
on the Air Space or the Easements.
1.31 "Purchase Agreemenf' shall mean the contract, dated as of even date herewith,
between BV, as seller, and the City, as buyer, setting forth the terms of the purchase by the City
from BV of the City Land, the Air Space and the Easements and, if applicable, the Resnick Air
space, for a purchase price of $2,842,544.00 (or an additional $275,000 for a total price of
$3,117,544.00 in the event of the City's acquisition of the Resnick Air Space as defined in the
Purchase Agreement). The purchase price shall be reduced by $100,000.00, the agreed upon
amount of savings as a result of the construction of the Garage creating portions of the Retail
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Space which would have to be constructed as part of the Retail Space were the Retail Space to
be newly constructed without the Garage being built.
1.32 "Resnick Air Space" shall mean the additional Air Space and Easements as
defined in the Purchase Agreement with respect to a portion of Lot 1, Block 34 of Ocean Beach
First Addition, according to the Plat thereof, recorded in Plat Book 3, Page 11, of the Public
Records of Dade County, Florida (the "Resnick Land") and the definition of Air Space and
Easements contained in this Agreement shall include the Resnick Air Space and the Easements
on the Resnick Land.
1.33 "Resolution" shall mean the Resolution No. 94-21099 of the City dated March 30,
1994, as same may be supplemented and amended, authorizing the City to enter into this
Agreement, the Parking Agreement and such other agreements and documents as are incidental
thereto and within the scope of the Resolution.
1.34 "Retail Space Construction Costs" shall mean those costs set forth on the Schedule
of Construction Costs of the Retail Space identified as Exhibit "I" attached hereto and other
costs agreed to among the parties.
1.35 "Schedule of Performancetl means the timetable for commencement, completion
stages and final completion of the Project set forth in Exhibit "I" attached hereto, subject to
authorized adjustments as provided herein.
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ARTICLE n
S~',F.cTION AND RR~PONSIBn,1TV OF THE D~VR'.oPER
2.1 CONSTRUCfION OF THE GARAGE BY BV AND THE GC. The City has
determined that its best interests will be served by having BV as developer together with the full
services of the Design Team to serve as the construction, engineering, and design team which
shall have the responsibility of constructing the Garage for the City, on a turn-key basis, on the
terms and conditions set forth in this Agreement. The City hereby authorizes BVand the GC,
and BV and the GC hereby agree, to design, construct, build and erect the Garage on the City
Property, and to equip the Garage in accordance with the description of work and equipment
contained in the Garage Construction Plans and Specifications, a copy of which shall be on file
with an Authorized Officer of the City, BV, the GC and with other members of the Design
Team. In furtherance thereof, the GC shall award sub-contracts for the construction of the
Garage upon a competitive or negotiated basis as will best facilitate the timely and most
economical completion of the Garage and its delivery thereof to the City, complete on a turn-key
basis, in accordance with the Garage Construction Plans and Specifications, ready for operation
and with all certificates of occupancy and completion having been duly issued by the required
governmental authorities. The City may designate standards and requirements for competitive
bidding and negotiation and circumstances under which negotiated contracts will be utilized. BV
and GC shall deliver copies of all documentation to evidence compliance with such competitive
bidding requirements of the City. The total cost to the City for such turn-key completion of the
Garage shall not exceed the GMP Garage Construction Costs as set forth in Exhibit "G".
Notwithstanding anything to the contrary herein, the total cost of the Garage shall not exceed
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$9,800.00, net and on a turn-key basis and as a guaranteed maximum price, times the number
of parking spaces in the Garage plus applicable sales tax and the cost of the City's auditor,
surveys, testing and reports as provided herein and increases resulting from change orders
provided for under the General Contractor's Agreement signed by the parties hereto. The scope
of the work included in this guaranteed maximum price is contained on Exhibit "G" attached
hereto. In order to achieve savings in the above referenced sales tax, the City and GC shall
cooperate to provide the direct purchase by the City of materials to be incorporated into the
work. The City will timely issue City Purchase Orders for such materials to GC's
Subcontractors or Suppliers and GC will assist the City in the preparation of such Purchase
Orders. The City will directly pay, on a timely basis, the Subcontractor or Supplier upon
approval of GC as provided herein. Such amounts directly paid by the City will be accounted
for against the GMP Construction Cost, but shall not reduce GC's other payments, including fee
for basic services, or obligations under the General Contractor's Agreement. To the extent any
such purchases would be determined to be subject to sales tax by any governmental body, court
or agency, City shall be responsible for such tax. Direct purchases by the City shall not limit
or relieve the GC of any warranties or guaranties for which it is liable to the City under this
Agreement or the General Contractor's Agreement.
2.2 Submission of Desif:n DevelQpment Plans. BV has submitted GMP Design
Development Drawings and Outline Specifications for the Garage to the City for its review and
approval as used herein. To the extent practicable, GC will obtain competitive quotes for each
portion of the work. If any vendor is the sole source for a product or material to be used in the
construction of the Garage, the GC must notify the City of such fact in writing and the City
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must respond to the GC's notice within 5 days of receipt of such notice or the sole source
identified in the notice shall be deemed reasonably acceptable to the City. All such contracts
shall be arms length transactions.
2.3 J\Rproval of Desi~ DevelQPment Plans by the City. The Design Review Board
and any other applicable authority of the City has reviewed and approved the garage Design
Development Drawings submitted to it by BV and has determined that same are acceptable to
the City prior to execution of this Agreement.
2.4 Submission of Final DevelQPment Plans
(a) Within seven working days after the City has closed on the purchase of the
City Property, BV and GC will commence preparation of the Construction Plans and
Specifications for the Garage and Retail Space. Not later than 60 days after said closing, BV
and GC will submit proposed Garage Construction Plans and Specifications to the City and its
Consultant for review and comments. Not later than ninety (90) days after the City closes on
the purchase of the City Property, BV and GC shall submit to the City plans in sufficient detail
and substance for issuance of a foundation permit for the construction of the Garage and shall
apply for and take all necessary steps to obtain the foundation permit. Within 365 days after
issuance of a foundation permit, the GC shall construct and complete the Garage in accordance
with the requirements as set forth in Section 2.21 hereof. The GC shall perform the work in
accordance with the Schedule of Performance and the General Contractor's Agreement. The
Construction Plans and Specifications shall conform to and include all of the information set
forth in the GMP Design Development Drawings and Outline Specifications, the written
recommendations of the City and its Consultant which recommendations shall be consistent with
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this Agreement, and shall conform to all applicable governmental requirements. If there is any
dispute among the parties during the preparation of the Construction Plans and Specifications
or upon completion of the Construction Plans and Specifications as to their being satisfactory
to the City as to their compliance with the Design Development Drawings and Outline
Specifications such dispute shall be resolved by the mutual decision of the GC, BV's engineer
and the City's Consultant. If the dispute cannot be resolved in this manner it shall be resolved
by arbitration as prescribed by Section 6.3 ("Arbitration"). If construction of the Garage is not
completed within the time above required, the Garage Construction Costs required to be paid
by the City shall be reduced by $750.00 per day for each day of delay up to the first 60 days
and $1,500.00 per day for each day of delay thereafter.
(b) All plans, reports and estimates which have been made in connection with
the Garage shall become the property of the City, and BV and GC shall deliver, or cause to be
delivered, to the City at least 10 sets of all such plans, reports and estimates and, if made, any
models of the Garage.
(c) It shall be the responsibility of BV, its architect and engineers to design the
Project so that the Garage and Retail Space structures properly mesh and that the design of the
Retail Space appropriately provides for the support of the Garage and for access to support and
all other components necessary to maintain and service the Garage.
2.5 Approval of Final Development Plans. Upon receipt of each portion of the
Construction Plans and Specifications, the appropriate City agencies shall review the plans for
adherence to this Agreement and for adherence to GMP Design Development Drawings and
Outline Specifications previously approved by the City. The City shall use its best efforts to
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approve the plans submitted or advise BV and the GC in writing that such plans do not comply
herewith as set forth above within 10 days after review of such plans. Any dispute over
approval of the plans shall be resolved as set forth above in Section 2.4(a).
2.6 S'CQpe of Review by City. The review of plans by the appropriate City departments
shall be solely for the purpose of determining that the proposed improvements represented
thereby in broad terms of size, design and quality meet the requirements of this Agreement.
Notwithstanding that the City may review such plans in detail, the City shall not be responsible
in any way for any error or omission therein or failure of such plans to comply with any
mechanical, engineering design or structural standards, any building regulation or other
governmental requirement, even though the City's building and other departments shall be
reviewing and approving the plans and issuing permits with respect thereto.
2.7 Contract for Construction. Ten days prior to the City's closing on the acquisition
of the City Property, BV and the GC shall submit to the City for its acceptance the General
Contractor's Agreement, in executable form, providing for the construction of the Garage
complying in all respects to the requirements of this Agreement together with a full payment and
performance bond for the design and the work. The General Contractor's Agreement and bond
for construction shall be in such form and contain such provisions as are satisfactory to the City.
The General Contractor's Agreement shall contain, among other things: a provision for the
appointment of an auditor, which auditor shall be selected by the City and will conduct an audit
of the cost of construction of the Garage on an ongoing basis; a provision which entitles the City
to 50 % of all savings in the actual audited GMP Garage Construction Costs reducing same
below $9,800 per parking space in the Garage; a provision in form and substance satisfactory
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to the City which shall declare the City a third-party beneficiary of said General Contractor's
Agreement and which shall provide for notice of default by BV or GC under such General
Contractor's Agreement to the City and the right of the City, at its option and not as its
obligation, to cure such default without penalty to the City subject to Section 8.2.1 hereof.
Issuance of the required payment and performance bond and execution by all required parties
of the General Contractor's Agreement are conditions precedent to the City's obligation to close
on the purchase of the City Property. If the City makes any successful claim under the payment
and performance bond resulting in a payment by the surety following a default by the GC under
this Agreement or the General Contractor's Agreement, then 100% of all savings in actual
Garage Construction Costs shall inure solely to the benefit of the City and shall not be shared
with BY.
2.8 Conditions Precedent to Commencement of Construction. As conditions precedent
to BV's or the GC's right to commence any portion of the construction, BVand the GC shall,
as applicable, have:
(a) secured the approval of the City for the portion of the Garage Construction
Plans and Specifications relating to that portion of construction as herein provided;
(b) submitted evidence satisfactory to the City that BY has funds necessary to
construct the Retail Space;
(c) all required parties shall have executed the General Contractor's Agreement;
(d) the City shall have received and approved the payment and performance
bond for the Garage required under this Agreement;
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(e) conveyed title to the City to the City ~operty in accordance with the
Purchase Agreement;
(t) secured all necessary licenses, permits and governmental authorizations in
connection with the purposes herein specified;
(g) obtained approval of demolition procedures from all applicable governmental
authorities including the City's Historic Preservation Board, Design Review Board and the City
Commission; and
(h) complied with all of the requirements of the Agreement prerequisite to
commencement of construction.
2.9 PERMITS AND AFPROV ALS. Before commencement of any construction or
demolition, BV and the GC shall be responsible for obtaining all permits and approvals from any
and all governmental authorities necessary for each phase of the work. The Project shall be
constructed in compliance with existing laws, ordinances and regulations and as may be amended
from time to time, applicable thereto. On or before the Completion Date, BV and the GC shall
deliver a completed Garage in accordance with the requirements of the General Contractor's
Agreement. The Garage Construction Costs are based upon laws, ordinances and regulations
existing as of the date of this Agreement.
2.10 Pro~ress Re.ports. Survey and As-Builts. Upon commencement of construction
and until construction of the Garage shall have been completed, the GC shall, in accordance with
the Agreement, make monthly reports (which shall be delivered to the City simultaneously with
each draw request), in such detail as may reasonably be requested by City, as to the actual
progress of the construction. BV, at its sole cost, shall furnish to the City: (i) five (5) sets of
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a foundation survey of the Garage prepared by a registered surveyor within fifteen (15) days
after completion of said foundation showing that the foundation has been poured within the
boundaries of the City Property and (ii) five (5) sets of as-built plans of the Garage prior to the
final construction disbursement.
2.11 Pa.yment of Contractors and SUPJ)liers
(a) Upon receipt of any required payment, GC shall make, or cause to be made,
subject to the appropriate retain age as contemplated by the construction lien law and as required
under the Agreement, and the General Contractor's Agreement, prompt payment of all monies
due and legally owing to all persons doing any work or furnishing any materials, fuel, machinery
or supplies to the GC or any of their contractors or sub-contractors in connection with the
construction of the Garage. The GC shall require lien waivers from contractors and
sub-contractors in order to comply with the construction lien laws of the State of Florida and as
required to obtain and deliver title insurance endorsement(s) insuring over such claims. The
City shall withhold from any payments due BV and GC, the retainage as contemplated by the
construction lien law and as required under this Agreement and the General Contractor's
Agreement.
(b) Upon receipt of any required payment, BV shall make, or cause to be made,
subject to the appropriate retainage as contemplated by the construction lien law and as required
under this Agreement prompt payment of all monies due and legally owing to all persons,
including the GC, doing any work or furnishing any materials, fuel, machinery or supplies to
BV or any of their contractors or sub-contractors in connection with the Premises and the
construction of the Garage. BV shall require lien waivers from contractors and sub-contractors
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in order to comply with the construction lien laws of the State of Florida and as required to
obtain and deliver title insurance endorsement(s) insuring over such claims. The City shall
withhold from any payments due BY t the retain age as contemplated by the construction lien law
and as required under this Agreement.
2.12 Construction Liens. If, because of any act or omission of BY or the GC, or any
contractor or sub-contractor, any construction lien or other lien for labor, material, fuel,
machinery or supplies shall be filed against the Premises, or any building, structure or
improvement thereon relating to work for which GC has been paid, BY and the GC shall, within
thirty (30) days of filing of such lien, cause the same to be canceled and discharged of record
or bonded off. BY and GC shall, within 10 days of receipt of notice of filing, deliver to the
City a copy of any lien filed against the Premises.
2.13 Coordination of Maintenance and Re.pairs. The City and BY expressly recognize
that in the fulfillment of their respective obligations to maintain and repair the Garage and the
Retail Space, certain functions and responsibilities will overlap by virtue of the contiguity of said
structures and the support systems of the Garage running through the Retail Space and attaching
to the BY Land. Accordingly, it is agreed that a detailed agreement of maintenance
responsibility (the "Maintenance Agreement") shall be entered into between the City and BY on
or before the execution of this Agreement, delineating the maintenance responsibility of each
party with the intent being that the City shall bear the costs of maintaining the Garage, and BY
shall bear the costs of maintaining the Retail Space and the Ramp Space, BY and the City
sharing equitably those maintenance costs which cannot be clearly identified as to the Garage,
the Ramp Space or the Retail Space. The Maintenance Agreement shall provide for the City to
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make the determination of disputed areas of responsibility, with BV retaining the right to contest
such determination and to seek reimbursement from the City for the cost of performing disputed
work but only after such repair or maintenance is completed. The existence of a dispute
between the City and BV over maintenance or repair responsibility shall not relieve either party
of performing the same in accordance with the determination made by the City until and unless
changed by Arbitration, court order or agreement of the parties. IfBV fails to contest the City's
determination of maintenance responsibility by commencing an Arbitration proceeding within
30 days after the City's determination is made and Bv is advised of the City's determination in
writing, then BV shall be deemed to have accepted the City's determination of maintenance
responsibility .
2.14 INSURANCE AND INDEMNIFICATION DURING CONSTRUCTION.
(A) During the period of construction of the Project and until such time as BV
and the GC have issued a final certificate of completion and all requirements have been satisfied
under Section 4.8 for the Project and turned over control of the Garage to the City, BVagrees
to indemnify and hold harmless the City, its officers, employees and agents, from and against
any and all actions, claims, liabilities, losses and expenses, including, but not limited to,
reasonable attorneys' fees and court costs at all judicial levels and proceedings, for personal,
economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity,
to the extent arising or alleged to have arisen from negligent acts or omissions or other wrongful
conduct of BV, its tenants, its employees, or agents in connection with performance by BV
pursuant to this Agreement and, to that extent, BV shall pay all such claims and losses and shall
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pay all such costs and attorneys fees and costs at all judicialleve1s and proceedings expended
by the City in the defense of such claims and losses, including appeals.
(B) During the period of construction of the Project and until such time as BV
and the GC have issued a final certificate of completion and all requirements have been satisfied
under Section 4.8 for the Project and turned over control of the Garage to the City, GC agrees
to indemnify and hold harmless the City, its officers, employees and agents, from and against
any and all actions, claims, liabilities, losses and expenses, including, but not limited to,
reasonable attorneys' fees and court costs at all judicial levels and proceedings, for personal,
economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity,
to the extent arising or alleged to have arisen from negligent acts or. omissions or other wrongful
conduct of the GC, its tenants, its employees, or agents in connection with performance by the
GC pursuant to this Agreement and, to that extent, the GC shall pay all such claims and losses
and shall pay all such costs and attorneys fees and costs at all judicial levels and proceedings
expended by the City in the defense of such claims and losses, including appeals.
2.15 INSURANCE DURING CONSTRUCTION. During construction, BV and the
GC shall each maintain or cause to be maintained in full force and effect at all times during the
period of construction of and equipping of the Project, with the City named as an additional
insured (except with respect to the policy described in (0) below which shall only name the
parties required by Florida law) and with 30-day notice required to be given to the City, BV and
the GC of any reduction, non-renewal, change or cancellation of coverage and otherwise meeting
the City's insurance requirements from time to time in effect, including the following:
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(A) Automobile liability insurance and equivalent policy forms covering all
owned, non-owned and hired vehicles used in connection with any work arising out of the
Project. Such insurance shall afford protection to at least a combined single limit for bodily
injury and property damage liability of $1,000,000 per occurrence;
(B) Comprehensive general liability insurance, including contractual liability,
or an equivalent policy form providing liability insurance against claims for personal injury or
death or property damage occurring on or about the Project. Such insurance shall afford
protection to at least a combined single limit for bodily injury and property damage liability of
$1,000,000 per occurrence for BV and $10,000,000 per occurrence for the GC;
(C) Theft coverage insurance covering employer fidelity, inside or outside loss
and burglary with a limit of not less than $250,000 per occurrence by the GC;
(0) Worker's Compensation and Employer's Liability Insurance as required by
Florida law.
2.15.1
GC shall procure and maintain, with the City, BV, the Architect and
all subcontractors and suppliers of any tier named as additional insureds, the following:
(a) Flood insurance in an amount satisfactory to the City;
(b) Insurance on the Project against" All Risks" of physical loss or damage,
including the expense of the removal of debris of such property as a result of damage by an
insured peril, written on as broad an "All Risk" form as is commercially available. At the
option of the City the aforementioned insurance may be provided in a Completed Value Builder's
Risk Policy. Any deductibles, not to exceed $100,000 per occurrence, for wind or water
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damage included in such insurance shall be the responsibility of the City. All other deductibles
shall be the responsibility of BV and the GC.
2.15.2
BV and GC shall require its Architect to maintain, for a period of
two years following completion of the Project as evidenced by issuance of a permanent
unconditional certificate of completion and/or occupancy, errors and omissions insurance on a
claims made basis which shall be for limits of not less than $1,000,000. BV and GC shall
require the Architect to indemnify GC, BV and the City to the same extent GC and BV are to
indemnify the City as provided herein and shall require the Architect to insure such indemnity
under the above errors and omissions insurance. Such insurance shall be the limit of GC' s and
BV's liability for design errors and GC and BV shall assign their respective rights against the
Architect's errors and omissions insurance to the City.
2.15.3
Prior to issuance of a foundation permit BV and the GC shall obtain
all required insurance, the carriers shall be bound and certificates of insurance and original
builders risk policy shall be delivered to the City. Such insurance shall remain in full force and
effect until completion of the Project and until the Garage is completed as defined herein. All
insurance provided for in this Section 2.15 shall be effected under valid and enforceable policies
issued by insurers of recognized responsibility, which are licensed to do business in the State
of Florida. All such companies must be rated at least "A" as to management and at least Class
"VIII" as to financial strength in the latest edition of Best's Insurance Guide. The insurance
required by this Section 2.15 may be part of another policy or policies of BV and the GC in
which other properties and locations are also covered so long as the amount of insurance
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o
available to pay losses at the Project is at least the minimum required by this Section 2.15 and
cannot be reduced in any manner by losses occurring at other properties or locations.
As a condition precedent to the City being required to close on the purchase of
the City Property or executing any documents related thereto, BV and the GC shall submit
certificates evidencing the required insurance policies to the City together with all relevant
coverage, policy terms and premium information along with satisfactory evidence of payment
of the premiums thereof.
2.16 ACTION TO INSURE COMPLETION OF PROJECT. BVand GC covenant and
agree that they will take such action and institute such proceedings as shall be necessary to
timely and fully complete their obligations under this Agreement, including, but not limited to,
the General Contractor's Agreement and any sub-contracts related thereto, diligently in
accordance with the terms thereof, including, without limitation, the correcting of any defective
work. BV and GC covenant and agree that they shall take such action as may be necessary or
advisable to insure the timely and full performance and completion of the Project in accordance
with the Schedule of Performance and the Construction Plans and Specifications and the
installation of equipment, if any, in accordance with applicable contracts pertaining thereto, and
to insure the performance by BV and GC of all their covenants and obligations under this
Agreement and the General Contractor's Agreement.
2.17 COVENANT TO COMPLETE: PAYMENT. PERFORMANCE AND
COMPLETION BOND. BV and the GC covenant and agree, jointly and severally, that, in the
event the actual cost of constructing the Garage as defined by the Garage Construction Plans and
Specifications should exceed the GMP Garage Construction Costs, the Garage shall nevertheless
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be promptly completed by them and BY and the GC hereby agree, jointly and severally, to pay
from their own funds the cost of such excess. Prior to commencement of construction, the GC
shall deliver to City an acceptable Payment, Performance and Completion Bond issued in form
and by such surety as approved by the City, for the full cost of the Garage under the General
Contractor's Agreement. The City acknowledges that Chubb Insurance Group and AlG are
acceptable sureties.
2.18 WARRANTIES EXTEND TO CITY. It is agreed that all vendors' warranties
received in connection with all equipment purchased, if any, for the Garage, together with all
warranties given by the GC, all sub-contractors, manufacturers or service organizations who
perform construction work or install any equipment for the Garage, shall extend to and be
written in favor of the City. If requested, BY and the GC shall execute and deliver appropriate
instruments required by the City to accomplish the intent of this Section.
2.19 CONSTRUCTION AND DESIGN SCHEDULE. BY and the GC shall commence
and complete all design, construction and development within the times specified in the Schedule
of Performance attached hereto as Exhibit "J" or within any extension of such times as may be
granted by the City in its sole discretion or otherwise as provided for in this Agreement, or in
the General Contractor's Agreement. The Schedule of Performance is subject to revision from
time to time only if mutually agreed upon in writing among BY, the GC and the City.
Within ten (10) days after the City's approval of the Construction Plans and
Specifications, BY and the GC shall prepare the Schedule of Performance specifying the dates
when the major elements and components of the work to be performed pursuant to the
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Construction Plans and Specifications are scheduled for completion, with such dates being
consistent with completing the construction on or before the Completion Date.
Monthly, during the period of construction, BV and the GC shall submit to the
City a report summarizing in detail the progress of construction on the Garage, the status of all
necessary governmental approvals required in connection with the construction work, the status
and degree of the completion of the construction work, and any anticipated delays under the
Schedule of Perfonnance supplied under the preceding paragraph, foreseeable or known to either
BV or the GC. Each report shall include a reasonable number of construction photographs taken
since the last report submitted by BV and the GC.
2.20 NO ADDmONAL CONSTRUCTION. NO SUBSTITUTIONS OR
ALTERNATES IN CONSTRUCTION. Neither BV nor the GC shall construct or permit the
construction of any improvements on the Premises other than the Project unless approved in
writing, in advance by the City. BVand GC shall not make any substitutions in construction
of the Garage without the City's written consent.
2.21 ESTABLISHMENT OF COMPLETION DATE. Upon Completion of the Garage
in accordance with this Agreement and the General Contractor's Agreement as defined by
paragraph 4.3 of Part 2 thereof, BV and the GC shall furnish to the City a certificate of
completion, duly executed by BV and the GC, stating that:
(A) the Garage has been completed in accordance with the General Contractor's
Agreement, the Construction Plans and Specifications and all labor, services, materials and
supplies used in such construction have been fully paid exclusive of retainage; and
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(B) a certificate of occupancy and/or completion for the Garage has been issued
by all applicable governmental authorities so that the City can occupy and use the Garage for
its intended purpose; and
(C) all equipment including, without limitation, the parking revenue control
system, closed circuit television system, elevators, and other facilities in accordance with the
Construction Plans and Specifications in connection with the Garage have been constructed,
acquired and installed in accordance with the Construction Plans and Specifications and all costs
and expenses incurred in connection therewith have been fully paid exclusive of retainage; and
(D) the equipment, if any, so installed is in proper operating order and is
suitable and sufficient for the efficient operation of the Garage for the purposes for which it is
intended.
Notwithstanding the foregoing, such certificate of completion shall state that
it is given without prejudice to any rights against third parties which exist at the date of such
certificate or which may subsequently come into being. Also, and notwithstanding the
foregoing, the establishment of such Completion Date shall not be a waiver of any rights of the
City hereunder, including, but not limited to, the right to ascertain to its own satisfaction the
accuracy of any matters contained in the certificate of completion furnished by BV and the GC.
Prior to the Completion Date, the City shall inspect and accept or reject the work and shall
provide a written punchlist to BV and GC. The work shall not be deemed completed until the
punchlist work necessary for occupancy and operation of the Garage is completed and accepted
by the City in writing. The GC shall complete promptly thereafter any remaining punchlist
items.
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ARTICLE m
ENVIRONMENTAL REPORT AND INDEMNlFICATION
3 .1 ENVIRONMENTAL REPORT. As a condition precedent to the City being
obligated to close on the purchase of the City Property, BV shall deliver to the City a Phase I
environmental audit (the "Environmental Report") addressed to the City, acceptable in form and
content to the City and prepared by an environmental engineering and consulting firm acceptable
to the City confirming that the BV Land and the City Land are free of "Hazardous Substances"
or the scope of any Hazardous Substances within the City Land and the BV Land and any
existing improvements thereon and such other reports as are needed for remediation and removal
of the Hazardous Substances, if any. The City and BV shall each pay 50% of the cost of the
environmental report with the total cost not to exceed 53,000.00. To the extent that the
Environmental Report indicates the presence of Hazardous Substances BV shall be obligated,
providing the cost does not exceed $50,000.00, to promptly take remediation measures to
remove same and provide the City an updated environmental report and DERM closure letter
confirming the City Property to be free of Hazardous Substances. If the cost exceeds
$50,000.00, the City may elect, at its option, to pay the excess cost required to remove the
Hazardous Substances or shall have the right to terminate this Agreement, the Purchase
Agreement and the General Contractor's Agreement and be relieved of any further obligations
or liability hereunder or thereunder.
The term "Hazardous Substances" means and includes, without limitation, any
toxic or hazardous substances or materials, petroleum or other pollutants and substances,
whether or not naturally occurring, including, without limitation, asbestos, radon, and methane
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gas, generated, treated, stored or disposed of, or otherwise deposited in or located on or under
the City Property or BV Land, including without limitation, the surface and subsurface waters
of the City Property or BY Land. "Hazardous Substances" shall also include any activity
undertaken on the City Property or BV Land which would cause (i) the City Property or BY
Land to become a hazardous waste treatment, storage, or disposal facility within the meaning
of, or otherwise bring the City Property or BV Land within the ambit of, the Resource
Conservation and Recovery Act of 1976 ("RCRA "),42 U.S.C. 6901 et seq., or any similar state
law or local ordinance, as amended; (ii) a release or threatened release of hazardous waste from
the City Property or BV Land within the meaning, or otherwise bring the City Property or BV
Land within the ambit of, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. 9601-9657, the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"), or any similar state law or local
ordinance or any other environmental law; (ill) the discharge of pollutants or effluent into any
water source or system, or the discharge into the air of any emissions, which would require a
permit under the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., or the Clean Air
Act, 42 U.S.c. 7401 et seq., the Toxic Substances Control Act, or any similar state law or local
ordinance; or (iv) any substances or conditions in, on, or under the City Land or BV Land
which may support a claim or cause of action under RCRA, CERCLA, SARA, or any other
federal, state, or local environmental statutes, regulations, ordinances, orders, decrees, or other
environmental regulatory requirements relating to health, safety, or the environment
(collectively, the "Statutes"), including the presence of any underground storage tanks or
underground deposits located on the City Property or BV Land. BV and the GC each
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individually assume all obligations of compliance with all environmental requirements and
Statutes related to health, safety, or the environment imposed by federal, state, and local
authorities that affect the City Property or BV Land and that were caused by their respective
actions or the actions of their respective employees, agents or contractors during construction
or any business or other activity conducted thereon or therewith by them through the completion
of the Project.
3.2 Presence of H~7udous Substances.
(A) BV warrants and represents to the City that except as reflected in the initial
Environmental Report delivered to the City prepared by Allied Environmental Consultants, Inc.
dated April 21, 1994 (the" Allied Environmental Report"), BV has no actual knowledge of (i)
the presence of any unlawful Hazardous Substances on the City Property or BV Land, or (ii) any
spills, releases, discharges, or disposal of Hazardous Substances that have occurred or are
presently occurring on or onto the City Property or BV Land or any adjacent properties, or (iii)
any spills or disposal of Hazardous Substances that have occurred or are presently occurring off
the City Property or BV Land as a result of any construction or operation and use of the City
Property or BV Land.
(B) In connection with the construction on or operation and use of the City
Property or BV Land, BV represents as to itself, its contractors, subcontractors, and any other
of its agents, that, as of the date hereof, except as may be reflected in the Allied Environmental
Report, and without having conducted any other investigation, it has no actual knowledge of any
failure to comply with all applicable local, state, and federal environmental laws, regulations,
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ordinances, and administrative and judicial orders relating to the generation, recycling, reuse,
sale, storage, handling, transport, and disposal of any Hazardous Substances.
3.3 Future Presence of R~7,udous Substances. BV and the GC each agrees to
immediately notify the City in writing if either becomes aware of (a) any Hazardous Substances
or other environmental problem or liability with respect to the City Property or BV Land, or any
adjacent property, or (b) any lien, action, or notice of the nature described in Sections 3.1 and
3.2 above. At their own cost, to the extent liability arises pursuant to the last sentence of
Section 3.1 above, BV and the GC shall jointly and severally take all actions which are
necessary or desirable to clean up any Hazardous Substances affecting the City Property or BV
Land, including removal, containment, or any other remedial action required by applicable
governmental or regulatory authorities.
3.4 Indemnification. To the extent liability respectively arises under Section 3.1, BV
and the GC hereby each agree, individually, unconditionally, absolutely, and irrevocably, to
indemnify, defend, and hold harmless the City, its successors, assigns, and the officials, officers,
employees, and agents of the City, against and in respect of:
(A) any loss, liability, cost, injury, expense, or damage of any and every kind
whatsoever (including without limitation, court costs and reasonable attorneys' fees and
expenses) which at any time or from time to time may be suffered or incurred in connection with
any inquiry, charge, claim, cause of action, demand, or lien made or arising directly or
indirectly or in connection with, with respect to, or as a direct or indirect result of the presence
on or under, or the escape, seepage, leakage, spillage, discharge, injection, disposal, emission,
or release from, the City Property or BV Land into or upon any land, the atmosphere, or any
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watercourse, body of water, or wetland, of any Hazardous Substances including, without
limitation, any losses, liabilities, damages, injuries, costs, expenses, or claims asserted or arising
under the statutes, whether now known or unknown, including without limitation:
(1) any costs, fees, or expenses incurred in connection with the removal,
encapsulation, or other treatment of Hazardous Substances from or on the City Property or BV
Land;
(2) any attorneys' fees, engineer's fees, and/or charges of any contractor or
expert retained or consulted in connection with any inquiry, claim, or demand, including without
limitation any costs incurred in connection with compliance with such inquiry, claim, or demand;
(B) any loss, liability, cost, expense, or damage (including without limitation,
attorneys' fees) suffered or incurred as a result of or arising out of or in connection with any
failure of the City Property or BV Land to comply with all applicable environmental protection
laws, ordinances, rules, and regulations relating to health, safety, or the environment, and any
litigation, proceeding, or governmental investigation relating to such compliance or
non-compliance; and
(C) any loss, liability, cost, expense, or damage directly or indirectly arising from any
claim, action, demand, cause of action, or damage relating to or in connection with any personal
injury concerning or relating to the presence of asbestos or other Hazardous Substances on the
City Property or BV Land.
3.5 Survival.
(A) The provisions of, and undertakings and indemnification set out in, this
Article ill shall survive completion of the Project, satisfaction by BV and GC of all of their
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respective other obligations under this Agreement, but shall not include any liability arising from
actions of the City, its officials, officers, agents or employees occurring after completion of the '
Garage and its acceptance by the City.
(B) This indemnity shall be continuing, irrevocable, and binding on BV and the
GC, jointly and severally, and their respective successors and assigns. The obligations of BV
and the GC hereunder may not be assigned.
3.6 Indemnification Procedure.
(A) BVand the Ge, as applicable, shall notify the City in writing promptly upon
receipt of any inquiry, notice, claim, charge, cause of action, or demand pertaining to the
matters indemnified hereunder, including without limitation any notice of inspection, abatement,
or noncompliance, stating the nature and basis of such inquiry or notification. BV and the Ge
shall promptly deliver to the City any and all documentation or records as the City may request
in connection with such notice or inquiry and shall keep the City advised of any subsequent
developments.
(B) The City shall give written notice to BV and the GC of any claim against
the City which might give rise to a claim by the City against BV, the GC or both under this
Article ill stating the nature and basis of the claim.
(C) If any action shall be brought against the City, then after the City notifies
BV and/or the GC thereof as provided in subsection 3.6 (B), then BV and the GC, as applicable,
shall be entitled to participate therein, and to assume the defense thereof at the expense of BV
and the GC, as applicable, with counsel reasonably satisfactory to the City and to settle and
compromise any such claim or action; provided, however, that the City may elect to be
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represented by separate counsel, at the City's expense, and if the City so elects, such settlement
or compromise shall be effected only with the consent of the City (as evidenced by the approval
of the City Commission or of the City Attorney and the City Manager, jointly) which consent
shall not be unreasonably withheld.
(0) BV and the GC, as applicable, shall make any payment required to be made
under this Article ill promptly, and shall make such payment by cashier's check drawn on a
bank located in Dade County, Florida in the amount thereof. If such payment is not made
forthwith, the City, at its sole election and in its sole discretion, may proceed, at the City's
option, to suit against or Arbitration with BV and the GC, as applicable.
ARTICLE IV
CONSTRUCTION COSTS AND DISBURSEMENT PROCEDIJRR<<O:
4.1 DISBURSEMENTS. The City agrees that it will, from time to time, and so long
as there shall exist no Default, but not more frequently than once a month, disburse portions of
the Garage Construction Costs to the GC payable pursuant to the General Contractor's
Agreement. Any other Garage Construction Costs shall be disbursed to BV or such other parties
as are entitled to receipt thereof. The conditions set forth in this Article IV must be satisfied
before the City has any obligations to make the first disbursement, and the conditions set forth
in this Article IV must be and remain satisfied before the City has any obligations to make each
subsequent disbursement.
4.2 DRAW REOUESTS. At least ten (10) days prior to each disbursement by the
City, BV and the GC, jointly, must submit to the City a Draw Request signed by the Design
Team, which shall include:
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(A) Request for Disbursement: Five duplicate originals of a completed request
for disbursement in the fonn attached hereto as Exhibit "K" (or in such format as is otherwise
acceptable to the City) ("Draw Request") setting forth the amount of the Garage Construction
Costs requested, together with such certifications and additional information as the City may
reasonably require, signed by Anthony Goldman for BV and by either Greg Montgomery or
Mickey Morrison for the GC certified to the City in a writing signed by them for the purpose
of submitting Draw Requests and certifying to the validity of the Draw Request and compliance
with this Agreement.
(B) Ap,plication for P~ment: If the Draw Request includes an application for
payment for amounts to be paid to the GC, originals of AlA Document G702 and AlA
Document G703 (or equivalents approved by the City), together with a certification that stored
materials are in place both on-site and off-site and secured in a fonnat acceptable to the City.
The application for payment shall contain a breakdown by trade or other categories acceptable
to the City, completed to the satisfaction of the City and executed by the GC and the Consultant.
The application for payment as it relates to the GC shall be reduced by a 10% retainage on the
work of all subcontractors of the GC until 50% of the work is completed, at which time no
further retainage will be deducted and the balance shall remain unfunded until Completion of the
work as defined herein. Upon Completion of the work in accordance with Section 4.8, the
retainage shall be paid, subject to continued retain age of 150% of each subcontractor's punchlist
amount as reasonably determined by the Consultant, which will be held until final disbursement
as defined in Section 4.8.
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(C) Invoices:
If the Draw Request includes a request for amounts for
non-construction items, invoices for such items.
(D) Lien Waivers: Notarized construction lien waiver forms executed by the
GC and by each appropriate subcontractor, supplier and materialman, which indicate that each
of them has been paid in full for all work and materials performed or furnished through the date
of the Draw Request as to the GC and through the date of the prior Draw Request as to the
subcontractors.
(E) Desi~ Team Affidavit: A notarized affidavit executed by BV and the
Design Team shall be submitted which certifies that all funds disbursed to date by the City have
been paid to the appropriate parties and certifies to the continued compliance of all provisions
of this Agreement and the Exhibits hereto.
(F) Consultant's Re,port: A written report from the Consultant certifying the
satisfactory completion of work through the date of the Draw Request complying with the Plans
and Specifications and confirming that the undisbursed portion of the Garage Construction Costs
and the undisbursed portion of the Retail Space Construction Costs are adequate to complete and
fully pay for the construction of the Garage and Retail Space, respectively, in accordance with
the Plans and Specifications.
(G) Architect's Re.port: A written report from the Architect certifying the
satisfactory completion of work through the date of the Draw Request complying with the Plans
and Specifications and confirming that the undisbursed portion of the Garage Construction Costs
and the undisbursed portion of the Retail Space Construction Costs are adequate to complete and
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fully pay for the construction of the Garage and Retail Space, respectively, in accordance with
the Plans and Specifications.
(H) Auditor's Re,port: A written report from the Auditor certifying the accuracy
of the amount requested under the Draw Request and making appropriate adjustments to reduce
the unpaid balance which the City is obligated to pay for the Garage Construction Costs in the
event the Auditor determines any savings have been achieved. Any delay by the Auditor in
preparing this report upon submittal of information by GC and BV shall not delay the processing
of the Draw Request.
4.3 Disbursement Amounts. Following receipt of a Draw Request and receipt and
review of the report of the Consultant and all other items required for a disbursement to be made
under this Agreement, the City shall determine the amount of the disbursement it will make in
accordance with the Garage Construction Costs, provided no Default exists.
4.4 Requirements. If the City at any time determines, in its reasonable discretion,
that the undisbursed portion of the Garage Construction Costs are not sufficient to fully complete
the Garage in accordance with the applicable Construction Plans and Specifications, then the City
shall have the option of requiring the GC to deposit with the City, within 10 days after written
notice from the City, additional funds in amounts sufficient to cover the resulting deficit before
the City is obligated to disburse any additional money. Funds deposited by the GC shall be
advanced as construction progresses in accordance with this Agreement before any additional
disbursements are made from the City's funds.
4.5 Qption to Disburse Funds to Contractors. If a Default exists, or upon notice to
the City of non-payment of any obligations related to construction of the Garage by BV or GC
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and failure of BV or GC to provide a reasonable explanation for non-payment, at its option, the
City may make disbursements directly to any party performing the obligations of BV and the GC
hereunder or any unpaid subcontractor, laborer or material supplier providing labor, services or
materials in connection with the construction of the Garage and whose claim is set forth in
writing and certified to the City. The execution of this Agreement by BV and the GC shall, and
hereby does, constitute an irrevocable direction and authorization to the City to so disburse the
funds. No further direction or authorization from either BV or the GC shall be necessary to
warrant such direct disbursements and all such disbursements shall be deemed disbursed to, or
on behalf of BV and the GC as fully as if made to BV or the GC, regardless of the disposition
thereof by any subcontractor, laborer or material supplier so paid.
4.6 Conditions to Initial Disbursement: The City shall not be obligated to make the
first disbursement until all of the following conditions have been satisfied by proper evidence,
execution and/or delivery to the City of the following items, all in form and substance
reasonably satisfactory to the City and the City Attorney:
(A) Notice of Commencement. The GC shall prepare a Notice of
Commencement which shall be properly completed, executed, recorded and posted in accordance
with the Florida Construction Lien Law.
(B) Insurance. Certificates of Insurance in accordance with the requirements
of Article II hereof shall have been delivered to the City.
(C) Plans and Specifications. Ten sets of the applicable Construction Plans and
Specifications which must have been approved in writing as provided in Section 2.4(a) hereof
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by the City, BV, the GC and the Consultant either by initialling same or by other written
approval identifying all pages and dates, including revision dates.
(0) Permits. A copy, certified by BV and the GC, of all applicable permits
including, without limitation, the building permit and any other permits required for construction
of the Garage.
(E) Construction Documents. Four COpIes of the General Contractor's
Agreement and of all construction contracts and subcontracts in excess of $10,000 and a list of
all other construction contracts and subcontracts including dollar amounts issued as of that date.
(F) Consents of GC. Architect. Eneineer. and EqJ,1ipment Lessors. Consents
from the GC, the Architect who prepared the Construction Plans and Specifications, equipment
lessors and all other sub-contractors, to assignments to the City by BV and the GC of their
interests in the contract with each of them, respectively, together with assignments thereof to the
City executed by said parties enforceable upon notice from the City of a default by BV or the
GC under this Agreement or under the General Contractor's Agreement. In addition, the
Architect shall agree that the City may use and copy the Construction Plans and Specifications
at no cost to the City. In furtherance of the assignment granted herein, BV and the GC shall
cause all contract parties including, without limitation, equipment lessors, to acknowledge this
assignment to the City and agree to continue such lease or contract on the same terms as
presently exist if the City shall succeed to the interest of the GC thereunder and if so requested
by the City.
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(G) Bmli1. A payment, performance and completion bond in the amount of the
General. Contractor's Agreement naming the City as an obligee and issued in such form and by
a surety acceptable to the City in its discretion.
(H) Transfer of City PrQperty. The City shall have closed on the purchase of
the City Property.
(I) Title Endorsement. The City, at its expense, shall have received an
endorsement to the title policy insuring the City with respect to the City Property.
(1) No Defaults. Except as provided under the terms of Section 8.2.1, no
Default shall exist under this Agreement, the General. Contractor's Agreement, the Purchase
Agreement or any related documents.
(K) Other Documents. Such other documents as are required by this Agreement
or reasonably required by the City.
4.7 Periodic Disbursements. City shall not be obligated to make any disbursements
after the first disbursement until all of the following conditions have been satisfied and remain
satisfied as of the date of each such disbursement:
(A) All of the conditions set forth in Article IV hereof, including, without
limitation, submission of a Draw Request.
(B) A request for payment signed by BV and the GC and setting forth a detailed
breakdown of the disbursement requested, including, without limitation, the requisition of the
GC, together with copies of invoices and other documentation to substantiate any requests by
BV and the GC for payment of Garage-related "soft costs" approved by the City and which are
a part of the Garage Construction Costs.
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(C) BV, the GC, the Design Team and the Consultant shall certify that
construction of the Garage for which such Draw Request has been made has been performed
substantially in accordance with the applicable Construction Plans and Specifications, the Garage
Construction Costs, and all terms and conditions of this Agreement and the General Contractor's
Agreement.
(D) The title policy insurer shall have issued to the City at City's expense an
owner's title insurance policy and an endorsement to the title policy updating the effective date
of the title policy, listing any additional subordinate matters and certifying that no lien or other
interest shall have attached to the Project, except taxes for the current year, not yet due and
payable and other matters acceptable to the City.
(E) If any of the foundations have been completed, a satisfactory foundation
survey shall have been submitted to the City consistent with the requirements of Section 4.7
hereunder.
(F) The City shall have received all required approvals to the Draw Request
including approvals and certificates from the Consultant, BV and from BV's architect and
engmeer.
(G) The City and the title insurer shall have received copies of all notarized
partial release lien waiver forms executed by each appropriate subcontractor, supplier and/or
materialman for disbursement made under the preceding Draw Request or any portions of the
current Draw Request shown to have been paid.
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(H) An Affidavit from BY and the GC, certifying that the funds disbursed to
date to either of them by the City have been paid by them, respectively, to the appropriate
parties.
(I) A soils report as to the compaction and other soils test on the BY Land and
the City Land by a soil testing firm satisfactory to the City, at such times and in such locations
as recommended by such firm. BY and the GC shall promptly submit to the City copies of all
such reports, together with any other physical tests made on the City Land and BY Land, the
Project, or the materials to be incorporated into the Project. Additional testing requested by the
City shall be at the City's expense.
(1) BY and the GC shall have satisfied (i) all conditions precedent to the first
disbursement as set forth in Article IV above, and (ii) all conditions precedent set forth
elsewhere in this Agreement.
(K) No litigation, Arbitration or other proceeding shall have been commenced
against the GC, which, in the City Attorney's or City Manager's reasonable judgment, materially
impairs or is likely to materially impair the GC's ability to complete the Garage.
(L) As and when requested by City, at City's expense, a recertification of the
Survey reflecting all changes in the physical conditions of the City Property, the BY Land and
the Project subsequent to the date of the last certification of the Survey. Each such
recertification shall show all construction and development work in place.
(M) There shall not have been any destruction or casualty to the Project that is
not anticipated to be covered by insurance. To the extent that there is any destruction or
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casualty whether or not covered by insurance, BV and the GC shall notify the City of same in
writing.
(N) No Default shall exist by BV or the GC under this Agreement or under the
General Contractor's Agreement and no event shall have occurred which, but for the giving of
notice or passage of time, would constitute such a default under this Agreement or the General
Contractor's Agreementt subject to the provisions of Section 8.2.1 of this Agreement.
4.8 Requirements for Final Disbursement. The City shall not be obligated to make
the final construction disbursement until all of the following additional conditions have been
satisfied:
(A) The Garage has been Completed in accordance with the requirements of the
General Contractor's Agreement and in accordance with the Construction Plans and
Specifications, and certificates as to such completion have been issued in form reasonably
satisfactory to the City by the Consultant and the GC, including, without limitation, Architect's
Certificate of Completion together with AlA G704 Certificate of Substantial Completion,
Contractor's Certificate of Completion together with the AlA G704 Certificate of Substantial
Completion and, if applicable, an Engineer's Certificate of Completion. The Completion Date
shall be subject to extensions as provided in Paragraph 4.5 of Part 2 of the General Contractor's
Agreement.
(B) City has received five (5) copies of an "as-built" survey, which shall be paid
for by the City, prepared by a registered surveyor showing that the Garage is in place within the
boundaries of the City Property, including striping of parking areas and a statement as to the
number of parking spaces available.
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(C) City has received five (5) sets of detailed as-built plans and specifications
of the Garage, which shall be paid for by the GC approved and certified as such in writing by
BV, the GC, and the Consultant. Each set must include plans and specifications for
architectural, structural, mechanical, plumbing, electrical and site development (including
without limitation, storm drainage, utility lines and landscaping) work.
(D) City has received a contractor's final affidavit from the GC and final lien
waivers and releases from the GC and all subcontractors, suppliers, laborers, and materialmen
certifying that they and all parties in privity with them have been paid in full except for the
retainage and, except therefor, waiving their lien rights against the Garage.
(E) City has received an inspection report performed by the Consultant in
substance satisfactory to the City which certifies, among other things, that the Garage is
completed in accordance with the Construction Plans and Specifications and in compliance with
this Agreement and Consultant's written approval of the final Draw Request.
(F) A certificate of occupancy and/or completion for the Garage has been issued
by all applicable governmental authorities.
(G) Provided that the GC furnishes the items required under this Section 4.8,
the City's auditor, within 10 days after Completion, has reviewed and certified the actual cost
of the Garage allocated to the GMP Garage Construction Costs and as may be amended from
time to time, if permitted, by this Agreement and the General Contractor's Agreement and, if
below $9,800 per parking space, then all adjustments shall have been made such that the final
payment will result in the City having received the benefit of 50% of the cost savings. If a cost
savings resulting from such audit or otherwise is agreed upon by the parties, the retainage may
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be applied to reimburse the City and, if the retainage is insufficient, BV and GC shall pay any
excess to the City within 10 days of written request by the City. If there is an undisbursed
balance under the General Contractor's Agreement representing cost savings, the City shall pay
50 % of the remaining cost savings to the GC.
ARTICLE V
INSURANCE REOUlREMENTS AFTER CONSTRUCTION
5.1 PROPERTY COVERAGE AFrER CONSTRUCflON PERIOD. Upon
completion of construction, BV and any subsequent owner of the BV Land and the Retail Space
shall, at its expense, keep the Retail Space insured against loss or damage as a result of fire,
windstorm, flood and those other hazards ordinarily insured against from time to time during
the term hereof in the City of Miami Beach, Florida in policies providing for "All Risk
Coverage" for physical damage or loss, through insurers of recognized responsibility authorized
to do business in Florida. Such insurance shall be in an amount sufficient to prevent the owner
from being a co-insurer and shall be based on not less than ninety percent (90%) of the
replacement value of said buildings, property and equipment. To the extent that insurance
proceeds are available, the owner shall be obligated to repair any damage or destruction to the
Retail Space at the earliest possible moment. Each insurance policy shall name the City as an
additional insured, as its interest may appear, and for loss to be payable to the City and the
owner.
5.2 COMPREHENSIVE GENERAL PUBLIC LIABILITY COVERAGE AFrER
CONSTRUCTION PERIOD. After the construction of the Retail Space has been completed,
BV shall secure and maintain, or cause to be secured and maintained, in full force and effect
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comprehensive general public liability insurance as will protect the owner of the Retail Space
and the City, their agents and employees, from any and all claims for damages for personal
injury or death, or for damage to any property of the City or the public which may arise out of
BV's ownership and operation of the Retail Space. The amounts of such insurance shall not be
less than a combined single limit of $1,000,000.00, personal injury, injury to persons or death
or for property damage. Each policy shall name the City as an additional insured and each
policy shall contain cross-liability endorsements.
5.3 WORKER'S COMPENSATION COVERAGE. BV shall secure and maintain,
in full force and effect, such Worker's Compensation coverage as is required under the laws of
the State of Florida.
5.4 LIMITED RF.T.EASE OF LIABILITY AND WAIVER OF SUBROGATION.
The City and BV release each other, and their respective authorized representatives, from any
claims for damage to any person or to the Premises that are caused by or result from risks
insured against under any insurance policies carried by the City or BV with respect to the
Garage and the Retail Space, respectively, and in force at the time of any such damage. The
City and BV shall, cause each insurance policy obtained by either to provide that the insurance
company waives all right of recovery by way of subrogation against any insured party in
connection with any damage covered by any policy. If the release of the City or BV as set forth
in the first sentence of this subsection shall contravene any law with respect to exculpatory
agreements, the liability of the party in question shall be deemed not released but shall be
secondary to the other's insurers.
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5.5 NON-CANCELLATION CLAUSE. All insurance policies or agreements shall
provide that they cannot be canceled or terminated until at least thirty (30) days prior notice has
been given to the City or to BV, as applicable, to the effect that such insurance policies or
agreements are to be canceled or terminated at a particular time.
5. 6 CERTIFICATES OF INSURANCE. BV and the City shall provide each other
with such certificates of insurance or other acceptable proof of compliance with the insurance
provisions of this Article V.
5.7 RIGHT OF CITY TO OBT Am INSURANCE. In the event that either the City
or BV, at any time refuses, neglects or fails to secure and maintain in full force and effect any
or all of the insurance required pursuant to this Agreement, the City and BV, as applicable, at
their option, may procure or renew such insurance and all amounts of money paid therefor shall
be payable forthwith by the party that was obligated to purchase such insurance with interest
thereon at the legal rate per annum from the date the same were paid to the date of payment
thereof by the obligated party. The City or BV, as applicable, shall notify the other party in
writing of the date, purposes and amounts of any such payments made by it.
5.8 MUTUALITY OF INSURANCE OBLIGATION. Except to the extent that the
City is permitted to be a self-insurer, all insurance obligations of the City hereunder as they
relate to its procurement of insurance on the Garage shall equally apply to BV in its procurement
of insurance for the Retail Space, including, without limitation, the naming of the City as an
additional insured.
5.9 REASONABLE DEDUCTIBLE. All types of insurance required by this
Article V may contain a reasonable deductible provision provided the party to be named as
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additional insured is given ten (10) days advance notice of said deductible provision and
approves the same in writing.
5.10 INSURANCE CARRTRRS: MANDATORY COVERAGE. The City and BV
shall cause property, comprehensive general liability and comprehensive automobile liability
coverage to be procured and with respect to the property coverage to carry the same on the basis
of full insurable value based upon replacement cost from time to time as projected by such
insurance carrier or carriers. Maintenance of insurance by BV is obligatory, and BV shall not
be permitted to be a self-insurer, except with regard to reasonable deductible amount applicable
to the Retail Space. The City shall be permitted to be a self-insurer.
5.11 FIRE OR OTHER CASUALTY AFTER CONSTRUCTION.
(A) Any Loss or Damaee. If there is any loss or damage by fire or other
casualty to the Retail Space, BV covenants and agrees to diligently commence and promptly
complete the reconstruction or repair of such loss or damage, to the extent necessary to protect
and preserve the Easements and permit the reconstruction and repair of any damage or
destruction to the Garage.
(B) Insurance Proceeds. Whenever the Retail Space, or any part thereof, shall
have been damaged or destroyed, BV shall promptly make proof of loss and shall proceed to
collect, or cause to be collected, all valid claims which may have arisen against insurers or
others based upon such damage or destruction. The proceeds of any such claim and any other
monies provided for construction, restoration, or repair of the Retail Space shall be utilized for
payment of reconstruction of the Retail Space to the extent required in Section 5.11(A) above.
In the event that the Retail Space is destroyed or damaged, in whole or in part, BV shall
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promptly give the City written notice of such damage or destruction, stating the date on which
such damage or destruction occurred.
ARTICLE VI
INDEMNIFICATION. LIMITATION OF I~I4R1T,1TY AND ARBITRATION
6.1 INDEMNIFICATION.
(A) Subsequent to the Completion Date, BV agrees to indemnify and hold
harmless the City and its officers, employees and agents, from and against any and all actions,
claims, liabilities, losses, and expenses, including, but not limited to, reasonable attorneys' fees
and costs at all judicial levels and proceedings, for personal, economic or bodily injury,
wrongful death, loss of or damage to property, in law or in equity, to the extent arising or
alleged to have arisen from the negligent acts or omissions or other wrongful conduct of BV,
its tenants, its employees, or agents in connection with performance by BV pursuant to this
Agreement and, to that extent, BV shall pay all such claims and losses and shall pay all such
costs and judgments which may issue from any lawsuit arising from such claims and losses, and
shall pay all costs and attorneys fees and costs at all judicial levels and proceedings expended
by the City in the defense of such claims and losses, including appeals.
(B) Subsequent to the Completion Date, the GC agrees to indemnify and hold
harmless the City and its officers, employees and agents, from and against any and all actions,
claims, liabilities, losses, and expenses, including, but not limited to, reasonable attorneys' fees
and costs at all judicial levels and proceedings, for personal, economic or bodily injury,
wrongful death, loss of or damage to property, in law or in equity, to the extent arising or
alleged to have arisen from the negligent acts or omissions or other wrongful conduct of the GC,
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its employees, or agents in connection with performance by the GC pursuant to this Agreement
and, to that extent, the GC shall pay all such claims and losses and shall pay all such costs and
judgments which may issue from any lawsuit arising from such claims and losses, and shall pay
all costs and reasonable attorneys fees and costs at all judicial levels and proceedings expended
by the City in the defense of such claims and losses, including appeals.
The parties each agree to give the other party written notice within three (3) days of any
claim coming to its knowledge that in any way directly or indirect affects the other party.
6.2 LIMITATION OF CITY'S LIABILITY
The City agrees to enter into this Agreement only if in so doing the City can place
a limit on the City's liability for any cause of action for money damages due to an alleged
breach by the City of this Agreement, so that its liability for any such breach never exceeds the
sum of One Hundred Thousand Dollars ($100,000). BV and the GC hereby express their
willingness to enter into this Agreement with their combined recovery from the City for any
damage action for breach of contract to be limited to a maximum amount of $100,000.
Allowable damages ("Allowable Damages") shall be limited to actual, out of pocket cash
damages and shall exclude all other damages, including, but not limited to punitive,
consequential and future damages.
Accordingly, and notwithstanding any other term or condition of this Agreement,
BV and the GC hereby agree that the City shall not be liable to, or on behalf of them for any
damages except Allowable Damages and in an amount not to exceed $100,000, in the aggregate,
for any action or claim arising out of the performance or non-performance of any obligations
imposed upon the City by this Agreement except that the City does not waive liability for its
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obligations to make payments for the construction of the Garage under the terms and conditions
contained in the General Contractor's Agreement and in this Agreement.
Further notwithstanding anything to the contrary contained in this Section 6.2, the City
does not waive its liability for actual damages, excluding from this waiver, however, any
liability for punitive or consequential damages, which BV may incur in the event that the City
willfully and in bad faith terminates the Parking Agreement in order to obtain higher revenues
from users of parking spaces in the Garage other than BV.
Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to
be a waiver of the limitation placed upon City's liability as set forth in ~768.28, Fla.Stat.
6.3 ARBITRATION
At the option of the City, any controversy or claim for money damages arising
out of or relating to this Agreement, or the breach hereof, shall be settled by Arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration Association, and
the Arbitration award shall be final and binding upon the parties hereto and subject to no appeal,
and shall deal with the question of the costs of Arbitration and all matters related thereto. In
that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot
agree upon the arbitrator, then the American Arbitration Association shall appoint one.
Judgment upon the award rendered may be entered into any court having jurisdiction, or
application may be made to such court for an order of enforcement. Any controversy or claim
other than a controversy or claim for money damages arising out of or relating to this
Agreement, or the breach hereof, including any controversy or claim relating to the right to
specific performance shall be settled by litigation and not Arbitration.
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ARTICLE vn
PUBLIC CHARGES
7.1 Covenant for Payment of Public Charf:es. BV covenants and agrees to pay and
discharge, before any fine, penalty, interest or cost may be added, all taxes, service charges,
water rents, and other public charges (hereinafter called "Public Charges") which, if not paid,
would be a charge, claim or lien upon or against the BV Land, or any part thereof. BV shall
not take any action which would result in any charge, claim or lien upon or against the City
Property including any portion of the Garage. Notwithstanding the provisions of the preceding
sentence, BV shall have the right to pay Public Charges in installments if permitted by law, and
to contest the amount or validity, in whole or in part, of any Public Charges by appropriate
proceedings, provided, however, that BV shall prosecute such proceedings with reasonable
diligence, and either pay all disputed Public Charges or escrow an appropriate sum as reasonably
required by the City or the taxing authority for the full payment of such Public Charges being
contested after completion of such proceedings. In the event that the City pays any of the Public
Charges after 10 days written notice to BV and BV's failure to pay same, as provided in this
Section 7.1, the City shall have a lien on the BV Land and the improvements thereon and may
evidence such lien by a notarized statement executed by any authorized City official which the
City, at its option, may record in the Public Records of Dade County, Florida, confirming the
date of payment by the City of the Public Charges, a description of the type of Public Charges
paid by the City, and the amount of the Public Charges. If, within 30 days after filing of the
notarized statement and written notice to BV of its filing, BV does not reimburse the City for
payment of the Public Charges together with interest thereon at the highest lawful rate from date
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of payment thereof by the City, the City shall have the right to declare a Default by BV under
this Agreement and a violation of the covenant of BV to pay Public Charges contained herein
and in the Easements, in addition to all other remedies for a Default by BY, to foreclose the lien
and sell the BV Land, as improved, to recover the amount paid to satisfy the Public Charges,
plus interest at the highest lawful rate and reasonable attorneys' fees, costs and expenses
incurred in enforcing its rights hereunder. The City, its assignee or designee may be purchaser
of the BY Land at said sale and may bid the amount of its lien and any judgment it holds in lieu
of cash. The City's lien rights hereunder shall be a covenant running with the land and
contained in the instrument to be recorded against the BV Land containing the Easements.
7.2 Evidence of Payment of Public Charees. BV shall, upon request by the City,
furnish or cause to be furnished, to the City, prior to delinquency, official receipts of the
appropriate taxing authorities or other proof satisfactory to the City, evidencing the payment of
any Public Charges which were due and payable on the BV Land and shall furnish same at any
time within ten (10) days after the date of any request by the City.
7.3 The City and BV shall cooperate to effect a separate ad valorem tax assessment
and tax folio number for each of the BY Land, City Land and Air Space to enable the City Land
and Air Space to be exempt from ad valorem taxes.
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ARTICLE VIII
EVENTS OF DEFAULT AND RRMRllTRC;
8.1 EVENTS OF DEFAULT BY BV OR GC. The following shall be "Event(s) of
Default" under this Agreement and the terms "Event of Default" or "Default" shall mean,
whenever they are used in this Agreement, anyone or more of the following events:
(A) Failure on the part of BV or the GC, respectively, to pay any of their
contractors or suppliers on the Project on the date that payment is due in accordance with the
contracts or agreements with said parties or in accordance with the terms of this Agreement or
the General Contractor's Agreement.
(B) Failure on the part of BV or the GC, respectively, to payor cause to be paid
the insurance premiums, charges or taxes with respect to the Project which they are respectively
required to pay for a period of ten (10) days after written notice specifying such failure and
requesting tr't it be remedied shall have been given to either of them by the City. For purposes
of this Section taxes shall be deemed t'due" upon any first date the same shall be payable without
penalty or interest.
(C) Failure on the part of BV or GC to make any payment required to be made
by them, respectively, to City or any third party as applicable to them individually pursuant to
this Agreement or the General Contractor's Agreement.
(0) Failure on the part of BV or the GC as applicable to observe and perform
any other covenant, condition or agreement which they have herein agreed to observe or
perform, for a period of ten (10) days after written notice specifying such failure and requesting
that it be remedied shall have been given by the City to BV or the GC, or both, as applicable.
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However, such a default shall be deemed to be cured, ifpromptly and in good faith upon receipt
of such notice BV and the OC, or either of them, as applicable, proceed diligently to correct
such default and corrects it as soon as reasonably possible but not later than forty five (45) days
thereafter. If such failure by BV or the GC, as applicable, to observe and perform any such
covenant, condition or agreement (other than a failure described in (A), (B) or (C) above) shall
result from a Force Majeure (as defined below), then they shall not be deemed to be in default
during the continuance of such inability during such Force Majeure. The term "Force Majeure"
shall mean an Act of God, an act of a public enemy, a strike or lockout or other industrial
disturbance, insurrection, riot, epidemic, drought, civil or military restraints, or a failure of
utilities, or other event beyond BV's or the GC's control which results in a delay of performance
and as to which written notice of the Force Majeure was delivered to the City within 2 working
days after its occurrence. (The settlement of strikes, lockouts and other industrial disturbances
shall not be deemed to be entirely within the discretion of BV or the GC, and BV and the GC
shall be deemed to be in default within the meaning of this paragraph if they shall refuse to
make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands
of the opposing party or parties when such course is unreasonable in the reasonable judgment
of the City.)
(E) Either BV or the GC shall file a petition In bankruptcy or for an
arrangement pursuant to any present or future federal bankruptcy act or under any similar federal
or state law, and shall be adjudicated a bankrupt or insolvent or shall make an assignment for
the benefit of its creditors or shall admit in writing its inability to pay its debts generally as they
become due, or if a petition or answer proposing the adjudication of either BV or the GC as a
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bankrupt under any present or future federal bankruptcy act or any similar or state law shall be
filed in any court and such petition or answer shall not be discharged or denied within sixty (60)
days after the filing thereof, or a receiver, trustee or liquidator of either BY or the GC or of all
or any portion of the Project shall be appointed in any proceeding brought against BY or the GC
and shall not be discharged within sixty (60) days after such appointment or if the estate or
interest of BY in the Retail Space or the BY Land or any part thereof shall be levied upon or
attached in any proceedings and such process shall not be vacated or discharged within sixty (60)
days after such levy or attachment, or either BY or the GC shall liquidate.
(F) The occurrence of a Default by BY under the Purchase Agreement or the
occurrence by BY or the GC, respectively, of a Default under any other document or agreement
executed by either of them in connection with the Project.
8.2 REMEDIES ON DEFAULT BY BY OR GC. Whenever any Event of Default
referred to in Section 8.1 hereof shall have occurred and be continuing, the City may, subject
to the provisions of Section 8.2.1 below, take anyone or more of the following remedial steps:
(A) From time to time take whatever action at law or in equity which may
appear necessary or desirable to recover damages, enforce performance and observance of any
obligation, agreement or covenant of either BY or the GC, or both, as applicable, under this
Agreement, the Purchase Agreement or any other documents related thereto.
(B) Complete the construction of the Garage by any reasonable means available,
including, but not limited to, completing construction of the Garage by dealing directly with and
making payments directly to any of the contractors or material suppliers of BY and the GC,
contracting with other contractors and material suppliers selected by the City in its sole
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discretion or such other measures as the City determines are nec~ssary for it to complete the
Garage. All costs and expenses incurred by the City in the event of a Default shall be included
in the measure of damages sustained by the City in such event.
(C) Termination of Parking Agreement, if the Garage is not constructed.
(D) Set off current and future obligations of the City under the Purchase
Agreement, this Agreement, the General. Contractor's Agreement or any other document or
agreement in connection with the Project.
8.2.1 So long as City and the GC agree that BV is in default and that neither the
City nor the GC has sent a notice of default to the other that has not been cured, City and the
GC shall proceed to perfonn under this Agreement and the General Contractor's Agreement
notwithstanding an alleged default by BV or any event which but for the giving of notice or
passage of time would constitute a default by BV, including the failure to execute or deliver any
Draw Requests or other documents, then the City and GC shall proceed under this Agreement
and General. Contractor's Agreement without BV.
8.3 EVENTS OF DEFAULT BY CITY. The City shall be in default under this
Agreement if it shall fail to pay any sums required of it hereunder or to perfonn any other
covenant, condition or agreement which it may have agreed to perfonn, after expiration of any
permitted grace or curative period and receipt of any required notice to which it may be entitled,
but in no event without receipt of at least ten (10) days prior written notice specifying the
default. If the default is other than a monetary default it shall be deemed cured if the City
promptly and in good faith commences to correct such default upon receipt of such notice. In
no event shall the City's liability exceed the limitations set forth in Section 6.2 hereof.
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8.4 NO RF.MF.DY EXCLUSIVE. No remedy conferred upon or reserved to any
party hereto, or existing at law or in equity, shall be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement, the Purchase Agreement, the General
Contractor's Agreement, the Parking Agreement or any other documents related thereto or now
or hereafter existing at law or in equity or by statute. No delay or omission to exercise any
right or power accruing upon any Default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised from time to
time as often as may be deemed expedient. In order to entitle any party to exercise any remedy
reserved to it in this Agreement, or existing in law or in equity, it shall not be necessary to give
notice, other than such notice as may be herein expressly required.
8.5 NO ADDmONAL WAIVER IMPLIF.D BY ONE WAIVER. In the event any
covenant contained in this Agreement should be breached by any party hereto and thereafter
waived by the other party, such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other breach hereunder. No waiver shall be deemed to have
been granted hereunder unless in writing and signed by the party granting the waiver.
8.6 REIMBURSEMENT OF EXPENSES UPON DEFAULT. In the event any party
is in Default under any of the provisions of this Agreement and fails to cure such Default after
any required notice and within a permitted cure period, the defaulting party shall, on demand
therefor, reimburse the other party or parties for the reasonable fees and expenses of its
attorneys actually incurred (whether or not suit shall have been brought) and such other expenses
as may reasonably be incurred in the enforcement of performance or observance of any
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obligation or agreement herein contained or in the collection of any sums due hereunder,
together with interest thereon from the date such expense was incurred to the date of
reimbursement at the highest lawful rate of interest. In the event of the City's Default, recovery
hereunder shall be included in the Allowable Damages and limited by the provisions of Section
6.2.
ARTICLE IX
OPTION TO PURCHASE
9.1 OPTION TO PURCHASE. Provided BV is not in default under any of the tenns,
covenants or conditions of this Agreement, for a period of 30 days commencing on the date
which is the later of 30 years after the date the City opens the Garage for service, or the date
upon which City Financing Proceeds, including any bond financing utilized by the City to
finance the purchase of the City Property and the construction of the Garage, have been repaid
or retired, BV is hereby granted an option to purchase the Garage including the City Land, the
Air Space and the Easements (the "Option"). The Option must be exercised pursuant to the
terms of this Article IX. In no event shall the Option extend beyond the 30 day period set forth
in this paragraph, anything to the contrary herein notwithstanding.
BV shall deliver written notice of its interest in exercising the Option during said 30 day
period (the "Option Notice") and closing shall occur within 180 days after the date of the Option
Notice. The sales price shall be the fair market value of the City Property, based upon
appraisals performed by appraisers acceptable to and selected by the City, and reasonably
acceptable to BV plus any accumulated deficit arising from operating expenses and debt service
exceeding gross revenues (" Accumulated Deficit") incurred by the City during its ownership of
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the City Property to the date on which BY closes on the purchase pursuant to this Article IX.
City will advise BY annually in writing of the accumulated deficit for the preceding year.
The method of evaluation utilized by the appraisers shall be to determine the value based
upon highest and best use of the City Property according to the standards existing at the time
the appraisals are made. Initially, there shall be two appraisals. If the values of the two
appraisals are within 20% of each other, then the value, exclusive of the portion of the sales
price related to the City's Accumulated Deficit, shall be the average values of the two appraisals.
If the difference exceeds 20 %, a third appraisal shall be obtained and the value, exclusive of the
Accumulated Deficit, shall be the average of the three appraisals. In all events the sales price
shall be the value determined by the appraisals as aforesaid plus the Accumulated Deficit.
The purchase shall be on an all-cash basis and the property shall be free and clear of any
liens, mortgages or encumbrances other than those created by BY. For a period of 40 days from
receipt by the City of BY's Option Notice ("Inspection Period"), BY, its agents, employees and
contractors shall be permitted to perform a complete inspection of the City Property. Unless
BY gives the City written notice of its decision not to purchase prior to 5:00 p.m. on the date
of expiration of the Inspection Period, BY shall be obligated to timely close on the purchase,
time being of the essence. The City shall be fully indemnified and insured for property damage
and personal injury to third parties and for damage to the City Property and the Garage to the
extent caused by the inspections in such manner as it reasonably requires prior to any inspections
being performed. Conveyance shall be "AS IS" without warranty or representation whatsoever.
BY shall pay for the aforementioned appraisals and the City shall not be required to order any
appraisals until payment therefor is delivered to the City by BY. BY's failure to pay for the
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appraisals in advance in sufficient time to permit closing within the time required hereunder shall
entitle the City to terminate this Option. The place of closing shall be in Dade County, Florida
and designated by the City.
At the time of closing, BV shall deliver to the City by wire transfer in cleared Federal
funds the amount of the purchase price. If BV shall fail to timely exercise its option or shall
fail to close, provided the City is ready, willing and able to close, BV shall no longer have any
rights with respect to this Option. Upon termination of the Option, the City is authorized to
record a notice terminating the Option and the Memorandum of Option. The purchase of the
City Property shall comply with existing law as of the date of this Agreement as to sale of
municipal real property unless a future law is retroactive and applicable to the date of this
Agreement, in which case such future law shall apply. If BV elects, by giving timely written
notice to the City before expiration of the Inspection Period, not to purchase, this Option shall
terminate.
If the Option is exercised, BV, at is sole expense, shall be responsible for performing its
own title examination and obtaining and paying for title insurance with respect to the property
to be acquired. The City shall convey title subject to easements, conditions, restrictions and
limitations of record. The City, at the closing of title, shall furnish a Special Warranty Deed,
a Mechanics Lien Affidavit, Bill of Sale, FIRPT A Affidavit, GAP Affidavit, such other
instruments as are reasonably required by BV and such corrective instruments that may be
required in connection with perfecting title. The City shall not be required to institute or defend
any litigation in order to clear title. Closing costs, recording charges, documentary stamps,
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surtax and other applicable charges and taxes shall be paid by BV. BV shall honor all parking
agreements existing on date of closing for a period of three years after closing.
In all events, this Option shall terminate and cease to exist upon the sale by BV of the
Retail Space or the BV Land or the transfer of any interest in BV, the Retail Space, or the BV
Land, whether voluntary or involuntary, resulting in Anthony Goldman or his heirs ("Anthony
Goldman") not owning a majority interest in BV, the BV Land and the Retail Space.
Provided that this Option has not terminated for the reasons set forth in the preceding
paragraph and that the Parking Agreement has not been terminated, it may be exercised by BV
in accordance with procedures and terms set forth above between the 25th and 30th years of the
Parking Agreement in the event that the Garage is destroyed by fire or other casualty and the
City elects not to reconstruct the Garage or if the City elects to terminate permanently the
operation of the Garage during such period. In such event BV must deliver the Option Notice
in writing to the City within 30 days after the City gives BV written notice of its election not
to reconstruct the Garage or to terminate permanently the operation of the Garage.
9.2 Memorandum of Qption. The City and BV agree that a memorandum of the
existence of BV's Option to purchase under this Agreement shall be executed by the parties in
the form attached hereto as Exhibit "L" and shall be recorded in the Public Records of Dade
County, Florida, upon execution of this Agreement.
ARTICLE X
RIGHT OF FIRST REFUSAL
10.1 RIGHT OF FIRST REFUSAL. The City is hereby granted the right of first
refusal to purchase the BV Land and the Retail Space, provided such right is exercised pursuant
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to the terms of this section and the City gives BV written notice of its election to exercise the
right of first refusal within 30 days after receipt of written notice of BV's intention to convey
the BV Land or the Retail Space or any interest therein to a third party together with a copy of
all proposed contracts, agreements and documents relating to the proposed sale. Copies of any
such contracts and agreements must be delivered to City within 3 days of their receipt by BV.
If the City elects to exercise its right of first refusal, closing shall occur under the terms of the
proposed contract provided, however, that provisions reasonably required by the City which do
not result in any material delay or any materially adverse economic change or cost to BV may
be added to the contract to be signed by the City and BV and the City shall not be obligated to
close for at least 120 days after exercise of the right of first refusal. To the extent the City's
closing occurs after the last required date of closing in the proposed contract, BV shall be
entitled to receive the value of its cost of funds for the extended period. If the City does not
exercise its right of first refusal at anyone time, the City shall continue to have the right of first
refusal under this Article X as to any future transactions involving the BV Land or the Retail
Space and the prospective buyer shall be advised of this right in any contract of sale. The date
and place of closing of title shall be designated by the City in its notice of election to exercise
its right of first refusal, provided, however, that such date shall be not more than one hundred
eighty (180) days and not less than thirty (30) days after the date of the notice from BV to the
City. The place of closing shall be in Dade County, Florida. If the City does not exercise its
right of first refusal, the third party contract must be signed in the form and on the same terms
presented to the City, and the closing thereunder must occur without modification; otherwise,
the right of first refusal shall be reinstated. If the third party shall fail to timely execute the
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contract or shall fail to close for the purchase price and under the terms and conditions contained
in the contract presented to the City, then the right of first refusal to the City shall be reinstated.
The closing of title shall take place in accordance with the proposed contract subject to
any documents or conditions required by law as a result of the City being the party acquiring
title. In addition, at the option of City, simultaneously with the closing or at any time requested
by the City thereafter, BY will execute and deliver documentation terminating the Parking
Agreement.
10.2 Memorandum of Rieht of First Refusal. The City and BY agree that a
Memorandum of the existence of the right of first refusal under this Agreement shall be executed
by the parties in the form attached hereto as Exhibit "M" and shall be recorded in the Public
Records of Dade County, Florida, upon execution of this Agreement.
ARTICLE XI
SPECIAL COVENANTS
11.1 RIGHT OF ACCESS TO PROJECT. BY and the GC agree that the City and its
duly authorized agents shall have the right at all reasonable times to enter upon the Project as
may be necessary to carry out or determine compliance with this Agreement, but such entry will
be subject to the giving of reasonable notice, to the execution of reasonable release of liability
agreements and compliance with reasonable safety requirements of BY and GC.
11.2 MAINTENANCE OF EXISTENCE. Both BY and the GC agree that during the
term of this Agreement they will each maintain their existence as a limited partnership or
corporation, as applicable, will not dissolve or otherwise dispose of all or substantially all of
their respective assets and will not consolidate with or merge into other corporations or
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partnerships, or permit one or more other corporations or partnerships to consolidate with or
merge into theirs, unless such change shall be approved in writing by the City Attorney or the
City Manager.
11.3 NO SALE OR LEASE OF RETAIL SPACE. Until completion of the Project and
acceptance by the City of the Garage, BV covenants that it will not sell, lease, convey,
encumber, lien, pledge or otherwise dispose of any of the BV Land or the Retail Space or any
interest therein or any beneficial interest in BV, except for leases to tenants for uses permitted
hereunder who will occupy portions of the Retail Space in the ordinary course of business.
11.4 BV hereby grants to the City the right, in the reasonable exercise of
its discretion, to prohibit any sale or lease of the Retail Space, or any portion thereof, to anyone
with a criminal record, having outstanding unsatisfied judgments or liens held by the City or any
of its agencies or departments or whose intent it is to use the Retail Space or any portion thereof
for unlawful uses or uses detrimental to the area serviced by the Garage. Uses detrimental to
the area serviced by the Garage are deemed to be: (1) Gun range or gun shop or other
establishment selling firearms and/or ammunition; (2) adult X-rated book store (or tapes, CD
ROM and the like); (3) peep show store; (4) head shop store; or (5) any store where the
inventory includes sexual devices, sexually obscene or licentious magazines, videos, tapes or
objects depicting genitalia and other similar items consisting of more than 30% of such store's
inventory. All leases for the Retail Space must contain provisions notifying tenants of the terms
of this Agreement and making said leases subject to and subordinate to the relevant terms hereof,
and acknowledgement by tenant that the City has no obligation to provide alternative spaces if
the Garage must be partially or fully closed for repairs, renovations or rebuilding and that City
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has the right to interrupt the business operations of the tenant to the extent reasonably necessary
to gain access to the Easements and for maintenance, repairs, renovation and rebuilding of the
Garage. BV acknowledges that the City has an interest in insuring that no portion of the Retail
Space be leased to tenants whose occupancy would have a negative impact on the Garage and
the area served by the Garage.
11.5 LEASE OF RAMP SPACE. The City agrees to lease to BV the land and
improvements under the ramp of the Garage, as more particularly described on Exhibit "0"
attached hereto and made a part hereof ("Ramp Space"), under the following terms and
conditions:
(A) Initial rental will be $5.00 per square foot, per year, plus all applicable
taxes, including sales taxes and ad valorem taxes, net to the City, payable monthly in advance,
subject to annual increases based upon the CPI computed against the initial $5.00 per square foot
rental rate, but not to exceed 3% in anyone year.
(B) BV is to maintain the Ramp Space at its sole cost and expense.
(C) Any area utilized for parking in the Ramp Space shall be solely for loading
and unloading purposes and all other parking is prohibited.
(D) The electrical room in the Ramp Space shall be available to the City with
rights of access, at no cost to the City, to house the City's telephone, CCTV, electrical and other
equipment relating to the Garage, jointly with the telephone, electrical and other equipment of
the Retail Space.
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(E) The term of the lease of Ramp Space shall run concurrently with the term
of the Parking Agreement, but the Ramp Space lease shall be assigned by BV to any subsequent
owner of the Retail Space.
11.6 BV TO FURNISH CERTAIN FINANCIAL AND DISCLOSURE
INFORMATION. BVand the GC covenant and each agree to furnish to City prior to execution
of this Agreement, certified copies of financial statements, or, in the case of BV, financial
statements may be signed by Anthony Goldman and notarized under oath, together with any
supporting schedules or documentation which City may reasonably require in order to establish
to the City's satisfaction that both BV and the GC are financially able to discharge their
obligations under this Agreement and that BV has adequate funds to pay in full, on a timely
basis, the Retail Space Construction Costs. The City may require updated financial statements
to be furnished to it at any time thereafter from BV and the GC, or either of them so long as
either BV or the GC has any remaining obligations under this Agreement or the General
Contractor's Agreement. Further, BV and GC shall furnish a disclosure affidavit in form
required by the City setting forth the names, addresses and percentage ownership of all persons
having any interest in BV or the GC in such form as required by the City to satisfy the
requirements of Section 286.23, Florida Statutes.
11.7 COVENANT REGARDING AUTHORIZED REPRESENTATIVES. The City,
BV and the GC covenant to furnish to each other written certificates containing the names of the
persons at the time designated to act on behalf of the City, BV or the GC pursuant to
Section 4.2(A) hereof.
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11.8 RPPRR4i;:ENTATIONS AND WARRANTIR4i;: OF BV AND THE GC. BVand
the GC each individually represents and warrants to City as to each of them as follows (all of
which shall survive the expiration or other termination of this Agreement):
(A) that there are no actions, suits or proceedings pending to the knowledge of
BV or the GC, as applicable, threatened against or affecting BV or the GC, as applicable, at law
or in equity or before any federal, state, municipal or governmental department, commission,
board, bureau or agency or instrumentality which would impair BV or the GC's, as applicable,
ability to perform its obligations under this Agreement;
(B) that this Agreement has been duly authorized, executed and delivered by BV
and the GC and constitutes the legal and valid binding obligation of BV and the GC, as
applicable;
(C) that the consummation of the transactions hereby contemplated in the
performance of this Agreement will not result in a breach or violation of or constitute a default
under any lease, bank loan or credit agreement to which either BV or the GC, as applicable, is
a party; and
(0) to the best of their knowledge, but without having made any investigation,
neither BV or the GC, nor any other property owned or leased by BV or the GC, as applicable
(1) is subject to any private or governmental lien or judicial or
administrative notice, order or action relating to Hazardous Substances or environmental
problems, impairments or liabilities with respect to the City Property or the BV Land which
could affect either BV's or the GC's, as applicable, ability to perform under this Agreement,
or
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(2) is in, or with any applicable notice and/or lapse of time, and/or
failure to take certain curative or remedial actions, will be in, either direct or indirect violation
of any Environmental Laws.
11.9 PARKING AGRRRMENT. BV and the City shall enter into a Parking Agreement
in the form required by the City, no later than the date the City acquires title to the City
Property, and as a condition precedent to the City's obligation to close on said purchase and
containing the following terms and conditions:
(A) The location of the parking spaces which are the subject of the Parking
Agreement, and the rules and regulations pertaining to such spaces, shall be as determined by
the City. Initially, the rate per parking space licensed to BV shall be $75.00 per month ("Base
License Rate"), fixed for two (2) years, payable monthly in advance, plus applicable taxes.
Thereafter the Base License Rate shall be subject to annual adjustment based upon the consumer
Price Index for Wage Earners and Clerical Workers, Miami, Florida (1982 - 1984 = 1(0)
published by the Bureau of Labor Statistics of the United States Department of Labor ("CPI").
The "Base Number" shall be the index for that month and year which is two (2) months prior
to the commencement date of the Parking Agreement (the "Base Month"). The "Current
Number" shall mean the latest index published for the Base Month of each calendar year during
the term of the Parking Agreement by the Bureau of Labor Statistics or other governmental
agency then publishing the CPI (or if the CPI is no longer published, a similar index for Miami,
Florida most closely comparable to the CPI) after making such adjustments as may be prescribed
by the agency or entity publishing the same, or as otherwise may be required, to compensate for
changes subsequent to the Base Number in the base, items included or method of compilation
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thereof. If the Current Number exceeds the Base Number, then the Base License Rate shall be
multiplied by a fraction, the numerator of which is the Current Number and the denominator of
which is the Base Number and the product shall thereupon be deemed to be the Base License
Rate for the forthcoming year. In no event shall the Base License Rate be less than $75.00 per
parking space per month during the entire term of the Parking Agreement. In the event that the
Current Number shall be unavailable at the time of commencement of an adjustment year, BV
shall pay to City on the basis of the existing Base License Rate until such time as the required
adjustment is determined, at which time an accounting will be made retroactive to the
commencement of the adjustment year. Anything herein to the contrary notwithstanding, it is
agreed that the Base License Rate shall not increase more than 3 % in anyone year. It is further
agreed that when the Base License Rate is re-adjusted every 5 years to the greater of the then
existing Bulk Rate or $75.00 per month, the Base Month shall be the month and year which is
two (2) months prior to the commencement of the five year re-adjustment period. The Base
License Rate shall be re-adjusted on each fifth anniversary of the Parking Agreement to equal
the greater of $75.00 per month or the then existing Bulk Rate, as defined below, and shall
thereafter be subject to the annual CPI adjustment as above provided on an annual basis. BV
shall obtain and pay for not less than 150 spaces, and, at its option, up to a maximum of 25 %
of the total spaces in the Garage each year. BV shall notify the City in writing annually, not
less than 30 days prior to each anniversary of the Parking Agreement as to the number of
parking spaces, subject to the aforesaid minimum and maximum criteria, it will contract for in
the forthcoming year. The parking spaces licensed to BV shall not be specifically designated
or assigned and shall be accessed on the same conditions as other licensees of parking spaces
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in the Garage, except as to the rate charged and term of the license. The City shall have no
obligation to leave empty at all times the total number of spaces licensed to BV, but shall be
permitted to oversell spaces based upon computer utilization guidelines. The initial term of the
Parking Agreement shall be for 30 years. .BV shall have the option to renew the Parking
Agreement for two successive 30 year terms on the same terms, subject to adjustment in the
Base License Rate, and subject to annual adjustments based upon the CPI, both as above
provided, at the lowest Commercial Bulk Rate, if any, which the City offen to other non-
governmental parties in the area bounded on the east by the alley east of Collins Avenue, the
west by the alley west of Washington Avenue, the south by either side of 5th Street and the
north by either side of 14th Street ("Bulk Rate"). The City shall have the right to terminate the
Parking Agreement upon the expiration of its initial thirty year term if the City determines that
the Garage will no longer be operated, or at any time commencing with the 25th anniversary of
the Parking Agreement if it elects not to rebuild the Garage following its damage or destruction
by casualty or otherwise, in the City's sole discretion. In such event, provided it is not
otherwise precluded from doing so under the provisions of Article IX of this Agreement, BV
may exercise the Option in accordance with the terms and conditions of said Article IX. Prior
to the 25th anniversary of the Parking Agreement, the City shall rebuild or repair the Garage
within a reasonable time after a casualty causing its damage or destruction. The City shall have
complete discretion in any rebuilding, renovation or redesign of the Garage including elimination
or addition of spaces. The parking spaces may only be utilized for tenants, guests and customers
of properties owned by Anthony Goldman or his heirs ("Goldman") or entities in which
Goldman is the majority (i.e. 50% or more in beneficial and voting interest) owner and which
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is controlled by Goldman ("Goldman Properties"). The right to use of the parking spaces which
are the subject of the Parking Agreement shall not be transferable upon sale of any of the
Goldman Properties or any interest therein which reduces Goldman's ownership interest to less
than 50%.
(B) BY has represented to the City that in order for BY to reach agreement with
the owner of the Resnick Land ("Resnick") to acquire the Resnick Air Space and the Easements
on the Resnick Land, Resnick has required BY to permit it to use six (6) of the parking spaces
to be licensed to BY under the Parking Agreement upon payment by Resnick to BY of the same
amount per parking space which BY is required to pay to the City from time to time. The City
hereby consents to such agreement on the conditions that Resnick's rights shall be subordinate
and inferior to the City's rights under the Parking Agreement, shall terminate upon termination
of the Parking Agreement and that Resnick acknowledges in writing to the City these conditions
of the City's consent.
(C) In the event that 100% of the Retail Space is not leased and occupied by no
later than six (6) months after the Completion of the Garage then BY shall license from the City
additional parking spaces in the Garage at double the monthly amount then being paid by BY
to the City for the spaces licensed to BY. The number of additional spaces shall be 25 if 100%
of the Retail Space is vacant or a proportionately lower number based upon the ratio that the
percentage of vacant space bears to 25 (e.g. a 20% vacancy in the Retail Space requires the
licensing of 5 spaces). Once the Retail Space is fully leased and occupied the obligations of BY
to license additional parking spaces shall terminate and shall not be reimposed even though a
portion of the Retail Space is subsequently vacated.
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(D) In the event that it is ever determined by any taxing authority or other
governmental agency that the Garage is subject to ad valorem property taxes by virtue of the
existence of the Parking Agreement, BV shall pay said tax in full promptly when due, in
addition to all other payments required of it pursuant to this Parking Agreement.
(E) In the event that BV fails to timely pay the obligations under the Parking
Agreement, the City may temporarily terminate all rights of BV under the Parking Agreement
forthwith until all required payments are brought current. Failure of BV to bring such payments
current within 90 days shall entitle the City to temporarily terminate the Parking Agreement
without BV having any right to reinstate same and, in such event, the Option granted to BV
pursuant to Article IX hereof to purchase the City Property shall immediately terminate. The
City shall further have the right to permanently terminate the Parking Agreement and the Option
to Purchase granted under Article IX in the event that the Parking Agreement temporarily
terminates five times during the term thereof. The City shall give BV written notice of its
Default in payment in order to commence the running of the 90 day period for permanent
termination of the Parking Agreement and the Option to Purchase.
11.10 MANAGEMENT AND OPERA nON OF PROJECT. The City and BV expressly
recognize that in the fulfillment of their respective obligations to maintain and repair the Garage
and the Retail Space, certain functions and responsibilities will overlap by virtue of the
contiguity of said structures and the support systems of the Garage running through the Retail
Space and attaching to the BV Land. Accordingly, it is agreed that a detailed agreement of
maintenance responsibility shall be entered into between the City and BV on or before September
30, 1994, which agreement shall provide for the City to make the determination of disputed
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areas of responsibility, with BV retaining the right to contest such determination and to seek
reimbursement from the City for the cost of performing disputed work but only after such repair
or maintenance is completed. The existence of a dispute between the City and BV over
maintenance or repair responsibility shall not relieve either party of performing the same in
accordance with the determination made by the City until and unless changed by court order or
agreement of the parties. This maintenance agreement shall include provisions for cleaning,
annual inspections, painting, maintenance of landscape areas, maintenance of walls and other
building portions common to the Garage and Retail Space and such other matters reasonable or
customary in similar facilities. BV acknowledges that the Garage is owned by the City and if,
for aesthetic, economic or other reasons deemed by the City to be in its best interests the City
has the sole right to change the design, structure or appearance of the Garage at anytime after
it is constructed.
11.11 REPRESENT A nONS AND WARRANTIES OF THE CITY. The City
represents and warrants to BV and the GC: (a) that this Agreement has been duly authorized,
executed and delivered by the City and constitutes a legal and binding obligation of the City; (b)
that, based upon information received by the City from its bond counsel, the proceeds of the
Gulf Breeze Bond Pool may be utilized by the City for the purchase of the City Property and
for the construction of the Garage; and (c) the City is not aware of any actions, suits or
proceedings, pending or threatened, at law or in equity before any Federal, state, municipal or
governmental department, commission, board, bureau or agency or instrumentality which would
impair the ability of the City to perform its obligations under this Agreement.
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11.12 ANTI-DISCRIMINATION DURING CONSTRUCITON AND EOUAL
EMPLOYMENT OPPORTUNITY.
(A) Non-Discrimination. BY and the GC each agrees it will not discriminate
upon the basis of race, color, creed, national origin, religion, age, sex or sexual preference in
the construction of the Garage and Retail Space, and that each contract or agreement with
respect thereto shall specifically contain this provision.
(B) EQ.ual QRportunity Provision.
(1) In the construction of the Garage and Retail Space neither BY, the
GC nor any contractor, agent or employee of BY or the GC shall discriminate against any
employee or applicant for employment because of race, color, creed, national origin, religion,
age, sex or sexual preference and they shall take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to their race,
color, religion, age, sex, or national origin. Such action shall include, but not be limited to, the
following: Employment, upgrading, demotion, or transfer; recruitment or recruitment
advertising, layoff or termination; rates of payor other forms of compensation, and selection
for training, including apprenticeship. BY and the GC each agrees to post in conspicuous
places, available to employees and applicants for employment, notices to be provided by the City
setting forth the provisions of this Equal Opportunity Clause, and to cause any contractor,
sub-contractor or agent to do likewise.
(2) BY, the GC and any contractor, sub-contractor or agent shall, in all
solicitations or advertisements for employees placed by them or on their behalf, state that all
qualified applicants will receive consideration or employment without regard to race, color,
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creed, national origin, religion, age, sex or sexual preference. They shall send to each labor
union, if any, or representative of workers with which they, or any of them, have a collective
bargaining agreement or other contract or understanding, a notice, to be provided by the City,
advising the labor union or workers representative of their commitments under this Equal
Opportunity Clause, and shall post copies of the notice in conspicuous places available to
employees and applicants for employment.
(C) Certification ofNonse&re~ated Facilities. BVand the GC each certifies that
it does not maintain or provide for its employees any segregated facilities at any of its
establishments, and that it does not permit its employees to perfonn their services at any
location, under its control, where segregated facilities are maintained. Each certifies further that
it will not maintain or provide for its employees any segregated facilities at any of its
establishments, and that it will not permit its employees to perfonn their services at any location,
under its control, where segregated facilities are maintained. BV and the GC each agrees that
a breach of this certification is violation of this Article XI of this Agreement. As used in this
certification, the terms "segregated facilities" means any waiting roms, work areas, rest rooms
and wash rooms, restaurants, and other eating areas, time clocks, locker rooms and other storage
or dressing areas, parking lots, drinking fountains, recreation or entertainment areas,
transportation, and housing facilities provided for employees which are segregated by explicit
directive or are in fact segregated on the basis of race, color, religion, or national origin,
because of habit, local custom or otherwise. BV and the GC each further agrees, as applicable,
that it will obtain identical certifications from proposed contractors, sub-contractors and
managers prior to the award of any contracts and that it will retain such certifications in its files.
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11.13 OTHRR DOCUMENTS. BV, the GC and the other members of the Design Team
shall deliver or cause to be delivered such other documents which the City reasonably requests
in connection with the subject matter of this Agreement.
11.14 RF.LATED PARTY VIOLATIONS AND PAST DUE CHARGES INVOLVING
CITY BUSINESS. BV hereby grants to the City a right of set off and deduction against any
amounts owed or to be paid by the City to BV under this Agreement, the Purchase Agreement
or any related documents for any amounts, including, but not limited to, taxes, liens and
assessments, due and payable by any entity or entities in which Anthony Goldman is an owner,
regardless of the amount of his ownership, to the City or any of its agencies or departments.
Said set off shall occur at closing on the purchase by the City of the City Land and Air Space.
ARTICLE xn
MISCELLANEOUS
12.1 SURVIVAL. Unless otherwise specifically stated to the contrary in this
Agreement, the provisions of this Agreement and the applicable payment, performance and
completion obligations of the parties set forth in this Agreement shall survive the execution of
this Agreement and any closing contemplated herein and shall survive termination of this
Agreement, as applicable.
12.2 ATTORNEYS FEES. Subject to the limits of liability set forth in this
Agreement, if any party obtains a judgment against any other party by reason of any litigation
arising out of this Agreement, reasonable attorneys' fees and costs may be recovered and may
be included in such judgment.
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12.3 AP,proval by Mayor and City Commission. This Agreement shall be binding
upon the City only after it has been approved at a public meeting by the Mayor and City
Commission of the City of Miami Beach and signed by the Mayor or Vice Mayor for the City
or another duly authorized person.
12.4 NOTICES. All notices, certificates or other communications hereunder shall be
written and shall be deemed given when mailed by first class mail, postage prepaid, except
where certified mail has been expressly required, addressed as follows:,
(A) If to BV, to:
Mr. Anthony Goldman
Goldman Properties
c/o Park Central Hotel
640 Ocean Drive
Miami Beach, Florida 33139
and at:
103 Greene Street
New York, New York 10012
(B) If to City, to:
City of Miami Beach
1700 Convention Center Drive
4th Floor
Miami Beach, Florida 33139
Attn: Mr. Roger Carlton, City Manager
and to:
City of Miami Beach
1700 Convention Center Drive
4th Floor
Miami Beach, Florida 33139
Attn: Laurence Feingold, Esq. City Attorney
(C) If to the GC, to:
James A. Staskiel, Esq.
Vice President & General Counsel
McCarthy
1341 North Rock Hill Road
St. Louis, Missouri 63124
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The City, BV and the GC may, by written notice given hereunder, designate any
further or different addresses, which subsequent notice of change of address shall be effective
only when received by each other party hereto.
12.5 AGRFF.MF.NT BINDING UPON PARTIF_c; AND SUCCESSORS. This
Agreement shall inure to the benefit of and shall be binding upon the City, BV and the GC and
their respective successors and assigns, subject, however, to the limitations contained herein.
12.6 PROHIBmON OF LIENS. Neither BV nor the GC shall create or suffer to be
created by any other person any lien or charge, whether for taxes, assessments, materials,
supplies, labor or otherwise, upon the BV Land, the City Property or the Retail Space or any
part thereof or upon the rents, contributions or charges or receipts or revenues therefrom for
work for which GC has been paid as provided herein. BV and the GC, jointly and severally,
further agree to payor cause to be discharged or make adequate provision to satisfy and
discharge, within thirty (30) days after the same shall become due, any such lien or charge and
also all lawful claims or demands for labor, materials, supplies or other charges which, if
unpaid, might be or become a lien upon the Garage or the Project or any part thereof or the
revenues or income therefrom for which GC has been paid as provided herein.
12.7 MODIFICATION OR AMENDMENT. No modification or amendment of this
Agreement or of any agreement supplemental hereto may be made except by written agreement
only, executed by all of the parties hereto.
12.8 REASONABLENESS OF APPROVALS. Pursuant to this Agreement, the City,
BV and the GC are required to give approvals to various matters affecting the rights of each
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other. In considering whether to give such approval the City, BV and the GC shall each be
reasonable in making such determination.
12.9 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
instrument.
12.10 APPLICABLE LAW. This Agreement shall be construed and enforced according
to the laws of Florida. Any litigation arising herefrom shall be filed in Dade County, Florida.
12.11 SEVERABILITY OF PROVISIONS. If anyone or more of the covenants,
agreements or provisions herein contained shall be held contrary to any express provisions of
law or contrary to the policy of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever be invalid, then such covenants, agreements or
provisions shall be null and void and shall be deemed separable from the remaining covenants,
agreements or provisions and shall in no way affect the validity of any of the other provisions
hereof.
12.12 PROVISIONS OF LAW DF.F.MF:D INCLUDED. Each and every provision of
State and Federal law required to be included in municipal agreements shall be deemed to be
included herein, and this Agreement shall be read, construed and enforced as though the same
were included herein. If, through mistake, inadvertence or otherwise, any such provision or
clause is not included herein or is incorrectly included herein, then, upon application of either
party hereto, this Agreement shall forthwith be amended to include the same or to correct the
inclusions of the same.
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12.13 INVALID PROVISIONS. If any provision of this Agreement is held invalid, the
remainder of this Agreement shall not be affected thereby if such remainder would then continue
to conform to the requirements of applicable laws.
12.14 APPLICABLE LAW AND CONSTRUCTION. The laws of the State of Florida
shall govern the validity, performance and enforcement of this Agreement. This Agreement
shall become effective only after it has been approved as contemplated by Section 12.3 and
thereafter only upon execution and delivery thereof by the City, BV and the GC. The headings
of the several sections contained herein are for convenience only and do not define, limit or
construe the contents of such sections. This Agreement has been negotiated by the City, BV and
the GC and the Agreement, together with all of the terms and provisions hereof, shall not be
deemed to have been prepared by anyone of the parties hereto.
12.15 GENDER AND NUMBER. Words of any gender used in this Agreement shall
be held to include any other gender, and words in the singular shall be held to include the plural
(and vice-versa), when the sense requires.
12.16 AWARD OF CONTRACT. BV warrants that it has not employed or retained any
company or persons to solicit this Agreement and that BV has not paid or agreed to pay any
company or persons any fee, commission, percentage, brokerage fee, gifts or any other
considerations contingent upon or resulting from the transactions which are the subject of this
Agreement.
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12.17 CONFLICfS WITH LEITER OF INTENT. This Agreement supersedes any
prior written agreement in conflict herewith and supersedes, replaces and incorporates, as
applicable, any provisions of any memorandum or letter of understanding previously approved
by the parties.
BV also warrants that to the best of its knowledge and belief no commissioner,
mayor or other officer or employee of the City is interested directly or indirectly in the profits
or benefits of this Agreement or the job, work, or services for the City in connection with the
Agreement or the Project.
BV and the GC are aware of the conflict of interest laws of The City of Miami
Beach, Dade County, and the State of Florida and each agrees that it shall fully comply in all
respects with the terms of said laws.
12.18 INCONSISTENCY WITH OTHER DOCUMENTS. In the event of any
inconsistency between the terms and provisions of this Agreement and those of the General
Contractor's Agreement or any other document executed pursuant hereto, the terms and
provisions of this Agreement shall prevail.
79A
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RXHIBIT "B"
Lower Elevation of Air Space
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EXHIBIT "e"
BV Land
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EXHIBIT "D"
City Land
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EXHIBIT "E"
Draw Request
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EXHIBIT "F"
General Contractor's Ap-eement
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RXRTRIT "G"
Narrative and Schedule of GMP DesilmlBuild Costs of Garaee
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Exhibit "H"
GMP Desip Develonment Drawill~~ and Outline SnecificatioDS
Exhibit "In
Retail Snace Constroction Costs
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Exhibit "1"
Schedule of Perfnnnance
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Exhibit "K"
Request for Disbursement
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Exhibit "L"
MemOrandum of Option
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Exhibit "M"
Memorandum of Ript of FU'St Refusal
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Exhibit "N"
F.SI~ments
(A) the right of the City, its successors, assigns, patrons, tenants, invitees and all
other persons designated by or having business with the City to access and use alone or in
conjunction with BV, and all others of all public sidewalks, streets, avenues, curbs and roadways
fronting on and abutting the Premises;
(B) the right of the City to have ingress, egress and passageway in, over, through and
across the Premises which shall be necessary or desirable for entrance, exit and passageway
within, to or from the Garage for the use in common of the City and BV, their respective
successors, assigns, patrons, tenants, invitees and all other persons having business with any of
them;
(C) the right of support and right of use in respect of, and to maintain and access
within the BV Land and the Retail Space, all as reasonably determined by the City, all essential
structural support elements, all pump systems for flood water control, all fire stand pipes, public
fire exits and fire control systems, all gas, electric, telephone, water, sewer, waste water, storm
water drainage and other utility lines, pipes, conduits and systems, all elevator apparatus and
elevator banks, all gas, electric, mechanical, elevator machinery, water, electrical and other
utility rooms, including meters and meter rooms, all heating, ventilating and air-conditioning
systems, all machinery and equipment, all electrical, plumbing and mechanical systems and any
pertaining to and needed now and in the future to support, use and operate the Garage;
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Exhibit "0"
RamD Space Description
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(D) the right to access, use, inspect, maintain, repair, renew, replace and relocate such
columns, supports, foundations, drains, utility lines, elevator shafts and pits and other
improvements and facilities in the Premises; and
(E) the right to reasonably close, disturb and interrupt the business, use and operations
within the Premises or any part thereof, including any business and use being conducted by BV
or any successor, assign, tenant or licensee of BV, during any period of maintenance, work or
use by the City of any of the Premises pursuant to the Easements.
The Easements shall be continuing and shall be a covenant running with the BV Land and shall
apply to the original construction of the Garage and to any replacements and relocation of the
Garage and of any of the improvements within the Easements and within the BV Land.
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EXHIBIT "Aft
Air Space
All air space bounded as follows:
(A) lower boundary - the horizontal plane at elevation _' as shown in Exhibit "B"
attached hereto and made a part hereof or the lowest portion of the roof of the Retail Space or
the lowest portion of the Garage including any ramps serving the Garage when actually built,
whichever of any of them is lower; and
(B) upper boundary - all air space above the lower boundary is part of the Air Space.
(C) peri metrical boundaries - the perimetrical boundaries as shall conform to the
exterior boundaries of the BV Land less the City Land projected vertically to intersect the upper
and lower boundaries, within which space the Garage shall be constructed as delineated below:
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by its duly authorized officers all as of the date first above written, but actually executed and
delivered this ~............... l.
,1994.
CITY :
ATTEST:
CITY OFJ MIAMI BEACH, a Florida
orporation
y'
\(~ C.~
City Clerk
By:
.~~
\'~T:- .
C~nt~
AyY\ ct CQ ~\~"-
{Vb,lo ~
By:
GJ1 Q.~ , President
~ ful\(,"t vale. Cor-f-, G\. florj da. (of'~ItA-hdh
?olt:. 'to\ua.1 po.r1"r\er
GC:
ATTEST:
MCCARTHY BROTHERS COMPANY, a
Missouri corporation
By: K~.~
.Kr-i~. N . ~cte.r.so() I ~. '-J . R~
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