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HomeMy WebLinkAbout16 Amended Parking Agreement " (ff) This instrument prepared by or under the supervision of (and after recording should be returned to): Matthew B, Gorson, Esq, Greenberg Traurig, PA 1221 Brickell Avenue Miami, Florida 33131 (Space Reserved for Clerk of Court) AMENDED AND RESTATED PARKING AGREEMENT THIS AMENDED A~9.IJESTA~P KING AGREEMENT (the "Agreemenf) is made and entered into as of the 4tC1ay 1999 by and among the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporatio ("City"), the MIAMI BEACH REDEVELOPMENT AGENCY, a Florida public agency organized and existing pursuant to the Community Redevelopment Act of 1969 (Chapter 163, Part III, Florida Statutes, as amended) ("Agency"), and WEST SIDE PARTNERS, LTD., a Florida limited partnership ("Developer"). W!IN~~~~IH : WHEREAS, the City, the Agency and South Shore Developers, Inc" a Florida corporation ("SSDI") entered into that certain Parking Agreement dated as of April 17, 1986 and recorded in Official Records Book 12873, at Page 2731, as amended by that certain letter agreement dated April 17, 1986, and assigned by SSDI to Developer by that certain instrument recorded in Official Records Book 16313, at Page 1077, all of the Public Records of Miami-Dade County (fonnerly Dade County), Florida (the "Existing Parking Agreement"); WHEREAS, that certain property commonly referred to as "SSDI North" located in Miami Beach, Miami-Dade County, Florida, and more particularly described on Exhibit "A" attached hereto (the "SSDI North Parcel") is the only property that remains subject to the Existing Parking Agreement; WHEREAS, in order to resolve certain controversies and litigation involving the SSDI North Parcel (among other properties), the City, the Agency and Developer entered into a . stipulation and order (the "Order") in that certain case styled West Side Partners. LId.. a Florida limited partnershiD. Plaintiff. vs, City of Miami Beach. Florida. a Florida municipal corporation. and the Miami Beach Redevelopment Aaencv. a Florida municipal aaencv oraanized and existina pursuant to the Communitv Redevelopment Act of 1969. Defendants, in the 11th Judicial Circuit in and for Miami-Dade County, Florida (the "Court"), Case No. 82-24526-CA-30 (the "1997 Litigation"), which Order was approved by the Court on October 19, 1998; '. WHEREAS, in conjunction with the settlement of the 1997 Litigation, the City, the Agency and Developer entered into a Settlement Agreement dated April 15, 1998, as amended pursuant to that certain Amendment to Settlement Agreement dated May 20, 1998, that certain Second Amendment to Settlement Agreement dated July 13, 1998, that certain Third Amendment to Settlement Agreement dated September 23, 1998, and that certain letter agreement dated October 15, 1998 (collectively, the "Settlement Agreement"), and pursuant thereto, the City, the Agency and Developer have agreed to execute and deliver this Agreement to, among other things, amend and restate the Existing Parking Agreement in its entirety, to provide the City and the Agency (collectively, "Grantee"), with certain permanent parking facilities, as well as laundry, lavatory and showers, retail/office space, and storage to be located upon the SSDI North Parcel for use by Miami Beach Marina Associates, Ltd., a Florida limited partnership ("Marina Lessee") for the benefit of the Miami Beach Marina (lying adjacent to the SSDI North Parcel) and the public generally, all subject to the terms and provisions set forth herein; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, it is agreed as follows: 1. Recitals: Amended and Restated Aareement. The foregoing recitals are true and correct and are incorporated herein by this reference. This Agreement amends, replaces, supersedes, and replaces the Existing Parking Agreement in its entirety, and accordingly, from and after the date hereof, the Existing Parking Agreement shall be of no further force or effect. 2. Temcorarv Facilities. From and after the date hereof until such time as Developer delivers to Grantee the permanent facilities described in Paragraph 3 below, Developer shall: (a) provide the Grantee certain temporary surface parking for use by the Marina Lessee pursuant and subject to that certain Parking License by and among Developer, Sun & Fun, Inc., a Florida corporation, Beachwalk Development Corporation, a Florida cDrporation, East Coastline Development, Ltd., a Florida limited partnership and Azure Coast Development, Ltd" a Florida limited partnership (collectively, as Licensor thereunder), and Grantee (as Licensee thereunder), dated of even date herewith and recDrded concurrently with this Agreement (the "Parking License"), and (b) provide the Marina Lessee the right to use of the existing improvements located on the SSDI North Parcel, including, but not limited to, the use of the Junior's building located in the northwest quadrant of the SSDI North Parcel, as well as bathroom and laundry facilities located thereon pursuant and subject to that certain Improvements License by and among Developer (as Licensor thereunder), and Grantee (as Licensee thereunder), dated Df even date herewith and recDrded concurrently with this Agreement (the "Improvements License.). In addition, with respect to the provision to the Marina Lessee of a temporary storage site under the Improvements License, the City and Developer have further agreed to provide a trailer to the Marina Lessee for such purpose and in that regard, the City and Developer shall each fund up to Five Thousand and No/100 ($5,000.00) Dollars for such purpose; and the Marina Lessee, by its joinder hereto, has agreed that any temporary parking spaces lost on the SSDI North Parcel as a result of the temporary storage trailer need not be made up on the Portofino Parcels (as defined in the Parking License), 3. Permanent Facilities: Lease. In connection with the construction of buildings on the SSDI North Parcel and that certain property commonly known as the "Southerly Portion of -2- '. SSDI South" located in Miami Beach, Miami-Dade County, Florida, and more particularly described on Exhibit "8" attached hereto (the "Southern Portion of SSDI South"), Developer agrees to construct certain permanent parking spaces in parking garage(s) (each a "Parking Garage") and lease those certain parking spaces to the City, as set forth in Section 4.2,2.1.1 of the Settlement Agreement, a true and correct copy of such section is attached as Exhibit "C" hereto; provided, however, that with respect to the provision of permanent parking facilities and permanent facilities for laundry, lavatory and showers, retail/office space, and storage (collectively, the "City Facilities") in the new Parking Garage(s) to be built on the SSDI NDrth Parcel and/or the Southern Portion of SSDI South, the parties hereby agree that the form of agreements to be used therefor shall be a IDng-term lease agreement (the "City Facilities Lease") for the same length of term and in the same form in all material respects as utilized and approved for the northern portion of SSDI South (immediately adjacent to the Southern Portion of SSDI South) for the building commonly referred to as the "Yacht Club" (the "Yacht Club Lease"), but in conformance with the provisions of the Settlement Agreement as to number of spaces, location, and other matters specified therein and the further understanding and agreement that anything to the contrary notwithstanding: (a) any areas utilized to provide such facilities shall proportionately reduce the number of parking spaces required to be delivered to the City, the Agency and the Marina Lessee; (b) the City shall reimburse Developer pursuant to the "purchase price" component of the base rent in amounts equal to the cost of building and delivering such facilities as follows: (i) storage areas shall be paid for in an amDunt equal tD what would have been paid for the parking spaces that are no longer built as a result of delivery of the storage space; (ii) laundry, lavatory and shDwer facilities shall be paid for at Developer's actual cost; and (iii) the retail/office space shall. be paid for at Developer's actual cost and is intended to be delivered in "plain vanilla" form, meaning the shell improvements with utility and air conditioning stub outs included (but no interior work); (c) None of the space utilized for the City parking and/or the foregoing facilities shall be counted against Developer's floor area limitations nor otherwise affect any zoning or planning calculations including, without limitation, set backs, lot size and/or frontage; and (d) The purchase price shall be paid as hereinafter in this Agreement provided. Subject to the foregoing, each City Facilities Lease shall also contain provisions on term, use, operational standards, parking privileges, rules and regulations, maintenance and repair costs, additional rent (provided, however, that tenant's proportionate share shall be determined based on computation of the rentable areas on the new facilities being constructed), changes in facilities, parking garage name, quiet enjoyment, governmental and other requirements, services, mechanics liens, liability and indemnity, insurance, subordination and non-disturbance, default, - 3- estoppel certificates, non-waiver, liens for payment of rent, miscellaneous provIsIons, assignability, notices and demands, captions, governing law-venue, relationship of parties, time of the essence, parties bound, severability, further assurances, brokerage, radon gas, landlord's representations, waiver of subrogation, recordation, entire agreement in the same form as the Yacht Club Lease. 4. Construction Df Parkina Garaaes (a) Each Parking Garage containing City Facilities shall be constructed in accordance with the Approved Concept Plan (as defined in the Settlement Agreement) as same may be amended from time to time but otherwise in accordance with the Settlement Agreement. Prior to commencement of the construction of a Parking Garage intended to contain the City Facilities, Developer shall deliver to Grantee and Marina Lessee, for their joint apprDval, plans and specifications and drawings for such Parking Garage (as the same may hereinafter be amended, the "Plans and Specifications"). Within thirty (30) days after receipt of the Plans and Specifications, Grantee and Marina Lessee shall by written notice to Developer, approve or disapprove the Plans and Specifications and, if disapproving the Plans and Specifications, Grantee and Marina Lessee (as applicable) shall also provide Developer with specific written objections thereto stated with reasonable particularity, Grantee and Marina Lessee shall not unreasonably withhold or delay their approval and shall grant their approval if the Plans and Specifications are consistent with the Approved Concept Plan (as amended from time to time) and otherwise in accordance with the Settlement Agreement. Failure to respond, in writing and with the particularity required above, within such thirty (30) days period shall conclusively be deemed to be approval of the Plans and Specifications. (b) Developer, in its sole discretion, may make changes in the Plans and Specifications, without the approval of Grantee or Marina Lessee, prDvided that such changes do not materially and adversely affect the proposed use of the applicable Parking Garage for the parking requirements of the Marina Lessee, decrease the number of required parking spaces to be provided to the City or materially alter their location, or materially change the scope or location of the laundry, lavatory and showers, retail/office space, and storage. Developer shall deliver to Grantee and Marina Lessee any Plans and Specifications containing changes materially and adversely affecting the proposed use of the applicable Parking Garage for the parking requirements of the Marina Lessee, decreasing the number of required parking spaces to be provided to the City or materially altering their location, or materially changing the scope or location of the laundry, lavatory and showers, retail/office space and/or storage, for the approval or disapproval of Grantee and Marina Lessee (solely as to such changes) prior tD incorporating such changes intD the construction of the applicable Parking Garage. Within fifteen (15) days after receipt of such revised Plans and Specifications, Grantee and Marina Lessee shall, by written notice to Developer, approve or disapprove the revised Plans and Specifications and, if disapproving the revised Plans and Specifications, Grantee and Marina Lessee shall also provide Developer with specific written objections thereto stated with reasonable particularity, Grantee and Marina Lessee shall not unreasonably withhold or delay their approval of such proposed changes. Failure of Grantee and Marina Lessee to respond, in writing and with the particularity required above, within such fifteen (15) day period shall conclusively be deemed to be approval of any such proposed changes. Nothing herein shall relieve Developer from the obligation to obtain the requisite City building permits and design review board approvals (consistent with the Approved Concept Plan as amended from time to time). -4- (c) Developer agrees that, to the extent possible, all utilities serving the City Facilities shall be provided through systems which are separate from the remainder of the Parking Garage and any structures appurtenant thereto. To the extent such utilities are separately metered, Grantee shall pay the cost of all such utilities directly to the authority or utility providing the same. The cost of repair and maintenance of all utility systems serving the City Facilities shall be the sole responsibility of Grantee. (d) Not less than thirty (30) days prior to Developer's anticipated date for the completion of a Parking Garage, Developer shall give notice to Grantee of its anticipated completion. The Parking Garage for which Developer has given notice shall be deemed to have been "completed" (the "Completion Date") so long as (i) the Parking Garage has been constructed in substantial accordance with the Plans and Specifications, as modified, if applicable, in accordance with subparagraph (b) above, (ii) the portion of the City Facilities contained in such Parking Garage are fully operational and ready to be opened for business on a normal business basis in a manner consistent with the Operational Standards (as hereinafter defined), without undue danger to users, and (iii) Developer has received a certificate of occupancy from the City permitting the operation of the City Facilities and (iv) the "punch list" items referred to in subparagraph (e) below have been substantially completed. (e) Entry into possessiDn of the City Facilities in the Parking Garage by Grantee or the Marina Lessee, as evidenced by the use thereof by the Marina Lessee (the date such use first occurs being the "Possession Date"), will constitute acknowledgment by Grantee that the City Facilities are in the condition in which Developer was required to deliver the City Facilities under the terms of this Agreement and the Settlement Agreement and that Developer has performed all of its obligations relating to construction of such City Facilities, except for (i) those defects, if any, in construction from the Plans and Specifications, other than latent defects therein, set forth on a written list ("punch list") to be delivered by Grantee to Developer within thirty (30) days after the date Developer advises Grantee that the City Facilities are ready for possession, and (ii) those latent defects therein as to which Grantee notifies Developer, in writing, within twelve (12) months of the Possession Date, With respect to such City Facilities, at the expiration of such 12 month period, Developer shall assign to the Grantee any warranty rights obtained from contractors, subcontractors and suppliers which remain outstanding at such time. Developer shall, upon receipt of the list referred to in subparagraph (i) hereof, commence to correct all such defects which require correction in order for the construction of the City Facilities to comply in substantial accordance with the Plans and Specifications, as modified, if applicable, in accordance with subparagraph (b) above, and the applicable provisions of this Agreement. (f) The construction of the City Facilities described in the Plans and Specifications, as modified, if applicable, in accordance with subparagraph (b) above, shall be deemed to have been completed in substantial accordance with the Plans and Specifications, as modified, if applicable, in accordance with subparagraph (b) above, notwithstanding that minor adjustments may be required by Developer or minor errors or omissions of Developer may require correction, provided that, subject to subsection (e) above, such adjustments and corrections are made within a reasonable amount of time after discovery of the same. 5, Purchase Price, The purchase price for the City Facilities ("Purchase Price") shall be determined in the manner set forth in paragraph 3 above and paid in accDrdance with Paragraph 6 below. - 5- 6, Pavment of Purchase Price and Conditions to Construction of City Facilities, The Purchase Price shall be paid to Developer as fDllows: The Purchase Price shall be initially estimated at the time of cDnstruction based upon the pricing formulas set forth in the Settlement Agreement and paragraph 3(b) above for those facilities to be paid based on a fixed price and the cDntractor's bid price for those facilities that are to be paid for at Developer's actual cost. The initial estimated price shall thereafter be paid by the Grantee tD the Developer in sixteen (16) consecutive equal monthly installments commencing on the first day of the first month following commencement of construction of the City Facilities, provided, anything to the contrary notwithstanding, that the percentage of the estimated initial purchase price paid shall not exceed the percentage of completion of the Parking Garage as certified to Grantee by Developer's architect or engineer. Within thirty (30) days following completion of the applicable facilities, the Purchase Price shall be adjusted, if necessary, to reflect any changes in the actual final cost of those portions of the facilities that are to be paid based on Developer's actual cost and Grantee and Developer shall promptly readjust any payments to reflect such final adjusted CDstS. All payments shall be made by cashier's check or wire transfer of cleared U.S. funds. Grantee acknowledges and agrees that the provisions of the Settlement Agreement providing for increases in the Purchase Price shall be based on a percentage increase from the date of the Settlement Agreement until the date the initial estimated price as set forth above is determined, and the increase shall be calculated as follows: The Purchase Price shall be increased if the CDnsumer Price Index -- U.S. City Average -- All Urban Consumers (index) as published by the United States Department of Labor's Bureau of Labor Statistics, increases over the Base Period Index (as hereinafter defined). The "Base Period Index" shall be the index for Mar., 1998 (Le" the calendar month immediately preceding the date of the Settlement Agreement). The Base Period Index shall be compared with the index for the calendar month immediately preceding the date the initial estimated price as set forth above is determined (the "Comparison Month"). If the index for the Comparison Month is higher than the Base Period Index, then the Purchase Price shall be increased by the identical percentage. Notwithstanding anything to the contrary, in no event shall the Purchase Price be reduced. ShDUld the Bureau of Labor Statistics discDntinue the publication of the above index, or publish same less frequently, or alter same in some other manner, then the parties shall adopt a substitute index or substitute procedure which reasonably reflects and monitor's consumer prices. To secure and pay the obligations of the Grantee to pay the Purchase Price under this paragraph 6, the City and Agency, as applicable, pledge, agree, and covenant as follows: (a) the Agency pledges, agrees and covenants to utilize all tax increment revenues available and necessary from the Redevelopment Area (as defined in the Settlement Agreement) pursuant to Section 163,387, Florida Statutes, as amended (subject only to any prior pledge of these revenues made before the date of this Agreement, the pledge hereunder being junior, inferior and subordinate in all respects to the pledge in favor of bonds issued under the provisiDns of Resolution No. 81-89, as amended, adopted by the Agency on June 21, 1989, as to lien on and source and security for payment and in all other respects) to pay the monthly installments required herein (and provided that the foregoing shall not be deemed to prohibit a subordinate pledge); and -6- (b) to the extent the tax increment revenues under subparagraph (a) above are insufficient or for any other reason are unavailable, the City agrees to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Funds (as hereinafter defined) lawfully available in each fiscal year, amounts sufficient to satisfy the monthly installments required herein. Such covenant and agreement on the part of the City to budget and appropriate such amounts of Non-Ad Valorem Funds shall be cumulative to the extent not paid, and shall continue until such Non-Ad Valorem Funds or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid, Notwithstanding the foregoing covenant of the City, the City does not covenant to maintain any services or programs, now provided or maintained by the City, which generated Non-Ad Valorem Funds. Such covenant to budget and appropriate does not create any lien upon or pledge of such Non-Ad Valorem Funds, nor does it preclude the City from pledging in the future its Non- Ad Valorem Funds, nor does it require the City to levy and collect any particular Non-Ad Valorem Funds, nor does it give Developer a prior claim on the Non-Ad Valorem Funds as oppDsed to claims of general creditors of the City. Such covenant to appropriate Non-Ad Valorem Funds is subject in all respects tD the payment of obligations secured by a pledge of such Non-Ad Valorem Funds heretofore or hereinafter entered into (including the payment of debt service on bonds and other debt instruments), HDwever, the covenant tD budget and appropriate in its general annual budget for the purposes and in the manner stated herein shall have the effect of making available in the manner described herein Non-Ad Valorem Funds and placing on the City a positive duty tD appropriate and budget, by amendment, if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 166.241 (3), Florida Statutes, which prDvides, in part, that the governing body of each municipality make appropriations for each fiscal year which, in anyone year, shall not exceed the amount to be received from taxation or other revenue sources; and subject further, to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the City or which are legally mandated by applicable law, The term "Nan-Ad Valorem Funds" shall mean all revenues of the City derived from any source other than ad valorem taxation on real or personal property, which are legally available to make the payments required herein, but only after provision has been made by the City for the payment of all essential or legally mandated services. 7, Default. (a) Developer's Default. In the event of any default by Developer hereunder not caused by Excusable Delays (as hereinafter defined), Grantee shall give Developer and each of Developer's mortgagees written notice specifying such default with particularity and Developer agrees to promptly commence the curing Df such default and to cure such default within thirty (30) days after receipt of the aforesaid notice; provided, however, that if such default cannot reasonably be cured within said thirty (30) day period, then Developer shall cure any such default diligently and as quickly as reasonably practicable under the circumstances and shall have a reasonable period of time within which to cure such default so long as Developer is so proceeding. If Developer fails to cure any default during the applicable curative period, Grantee, at any time after the expiration of such curative period (as long as such default remains uncured), shall have the right, subject to Paragraph 10 hereof, to seek damages against Developer and/or to exercise any other remedy provided in this Agreement or available to Grantee at law or in equity. As used herein, the term "Excusable Delay" shall mean Developer's failure to complete construction of the applicable Parking Garage or to perform any other obligation of Developer -7- hereunder, as applicable, by reason of one or mDre of the following causes, to-wit, governmental restrictions, regulations or ordinances, strikes, shortages of labor or essential materials, lockouts, acts of God, war, riots or civil commotion, fire or other casualty, negligence or the willful misconduct of Grantee or any licensee of Grantee, failure of the parties hereto to approve amendments of or changes to the Plans and Specifications, or any other cause, similar or dissimilar to the foregoing and whether Dr not now in the contemplation of the parties hereto, beyond the reasonable control of Developer, other than the financial inability of Developer to perform, provided that Developer takes reasonable steps to so minimize the effect of any such circumstance, but such steps shall not include the acquiescence in the demands of the other side in any labor dispute or the payment of money or the employment of labor at overtime or premium rates, in which event the date upon which Developer is so required to complete construction of the applicable Parking Garage (or the required time period for Developer's performance of any other obligation hereunder, as applicable) shall be extended for a period equal to the length of the delay caused by such Excusable Delays. Developer agrees to make a good faith effort to notify Grantee of any Excusable Delays affecting the performance by Developer of its obligations under this Agreement and the estimated delay to result therefrom, but the failure to give such notice shall not affect Developer's rights under this Paragraph 7(a). (b) Grantee's Default. In the event of any default by Grantee hereunder, not caused by Grantee Excusable Delays (as hereinafter defined), Developer shall give Grantee written notice specifying such default and Grantee agrees to promptly commence the curing of such default and to cure such default within thirty (30) days after receipt of the aforesaid notice; provided, however, that if such default cannot reasonably be cured within said thirty (30) day period, then Grantee shall cure any such default diligently and as quickly as reasonably practicable under the circumstances and shall have a reasonable period of time within which to cure such default so long as Grantee is so proceeding. If Grantee fails to cure any default during the applicable curative period, Developer, at any time after the expiration of such curative period, shall have the right to seek damages against Grantee and/or to exercise any other remedy provided in this Agreement or available to Developer at law or in equity. As used herein, the term "Grantee Excusable Delays" shall mean Grantee's failure to perform any obligation of Grantee hereunder by reason of one or more of the following causes, to-wit, governmental restrictions, regulations or ordinances (other than those restrictions, regulations or ordinances over which Grantee, as a governmental entity, exercises control), strikes, lockouts, acts of God, war, riots, gross negligence or the willful misconduct of Developer, or any Dther cause, similar or dissimilar to the foregoing and whether or not now in the contemplation Df the parties hereto, beyond the reasonable control of Grantee, other than the financial inability of Grantee, provided that Grantee takes reasonable steps to so minimize the effect of any such circumstance, in which event the required period for Grantee's performance for any obligation hereunder shall be extended for a period equal to the length of the delay caused by such Excusable Delays. Grantee agrees to make a good faith effDrt to notify Developer of any Excusable Delays affecting the performance by Grantee of its obligations under this Agreement and the estimated delay to result therefrom. Notwithstanding the foregoing, any failure of Grantee to timely pay the Purchase Price as required by Paragraph 5 above, shall if the same continues more than sixty (60) days after written notice to Grantee and the Marina Lessee (and without releasing the Grantee for all damages caused thereby), fully excuse and release Developer from any obligation to deliver the City Facilities hereunder, 8. Estoppel Certificates. Developer and Grantee shall execute and deliver to each other, at such time or times as either party may request, a certificate in recordable form stating: -8- (i) Whether or not this Agreement is in full force or effect; (ii) Whether or not this Agreement has been modified or amended in any respect, and submit copies of such modificatiDns or amendments, if any. (iii) Whether or not there are any existing defaults under this Agreement to the knowledge of party executing the certificate, and specifying the nature of such defaults, if any; and (iv) Such other information as may be reasonably requested by such other party . The aforesaid certificate(s) shall be delivered to Grantee or DevelDper, as the case may be, promptly upon receipt of the written request therefor, but in nD event more than ten (10) days following receipt of such request. 9. Non-Waiver. The failure by either party hereto to complain of any action, non- action or default of the other party hereto shall not constitute a waiver of any of such party's rights hereunder. Waiver by either party hereto of any right or any default of the other party hereto shall not constitute a waiver of any right for either a prior or subsequent default of the same obligation or for any prior or subsequent default of any Dther obligation. No right or remedy of either party hereunder or covenant, duty or obligation of either party hereunder shall be deemed waived by the other party hereto unless such waiver be in writing, signed by the other party or such other party's agent duly authorized in writing. 10, Miscellaneous, (a) Subject to the other provisions of this Paragraph 10, Developer and Grantee may each restrain or enjoin any breach or threatened breach of any covenant, duty or obligation of the other party (as applicable) herein contained without the necessity of proving the inadequacy of any legal remedy or irreparable harm. Subject to the other provisions of this Paragraph 10, the remedies of Developer and Grantee shall be deemed cumulative and no remedy of DevelDper or Grantee whether exercised by Grantee or Developer or not exercised by such party shall be deemed to be in exclusion of any other remedy unless otherwise expressly so stated in this Agreement. (b) The term "Developer" shall mean only the owner at the time in question of the present developer's interest in the applicable Parking Garage (and any building of which it is a part) and in the event of a sale or transfer of the same (by operation of law or otherwise), or in the event of the making of a lease of all or substantially all of the same, or in the event of a sale or transfer (by operation of law Dr otherwise) of the leasehold estate under any such lease, the grantors, transferor or lessors, as the case may be, shall be and hereby is (to the extent of the interest or portion of the applicable Parking Garage or leasehold estate sold, transferred or leased) automatically and entirely released and discharged, from and after the date of such sale, transfer or leasing, of all liability in respect of the performance of any of the terms, covenants or cDnditions of this Agreement on the part of Developer thereafter to be performed; provided that the purchaser, transferee or lessee (collectively, "Transferee") shall be deemed to have assumed and agreed to perform, subject to the limitations of this Paragraph 10(b) and Paragraphs 10(c) and (d) below (and without further agreement between the then parties hereto, or among such parties and Transferee) and only during and in respect of Transferee's period of ownership of Developer's interest, under this Agreement, all of the terms of this Agreement on the part of Developerto be performed during such period of ownership, which terms, covenants or conditions - 9- shall be deemed to "run with the land", it being intended that Developer's obligations hereunder shall, as limited by this Paragraph 10(b) and Paragraphs 10(c) and (d) below, be binding on Developer, its successors and assigns, only during and in respect of their respective successive periods of ownership; and provided further that in the event of a condominiumization of any applicable Parking Garage and building, the established condominium association shall be deemed the Transferee and succeed to all interests of the Developer (save and except payment of any deferred Purchase Price or other cost to be reimbursed which accrued prior to the creation of the condominium.) (c) No recourse shall be had on any of Developer's obligations hereunder or fDr any claim based thereon or otherwise in respect thereof against any incorporator, subscriber to the capital stock, shareholder, Dfficer of director, past, present or future, of any corporatiDn or any partner or joint venturer which shall be Developer or included in the term "Developer" or of any successor of any such cDrporation, partner or joint venturer, or against any principal, disclosed or undisclosed, or any affiliate of any party which shall be Developer or included in the term "Developer", whether directly or through Developer or through any receiver, assignee, trustee in bankruptcy or through any other person, firm or corporation, whether by virtue of any constitution, statute or rule Df law or by enforcement of any assessment or penalty or Dtherwise, all such liability being expressly waived and released by Grantee. (d) Grantee shall look solely to Developer's estate and interest in the applicable Parking Garage (and the building of which it is a part, if any) and the proceeds thereof for the satisfaction of any right of Grantee for the collection of a judgment or other judicial process or arbitration award requiring the payment of money by Developer and no other property or assets of Developer, DevelDper's agents, incorporators, shareholders, officers, directors, partners, venturers, principals (disclosed or undisclosed) or affiliates, shall be subject tD levy, lien, execution, attachment or other enforcement procedure for the satisfaction of Grantee's rights and remedies under or with respect to this Agreement, the relationship of Developer and Grantee hereunder or under law, or Grantee's use and occupancy of the City Facilities or any other liability of Developer to Grantee. (e) In the event that a Parking Garage shall be destroyed by any cause whatsoever, or if a Parking Garage shall be taken for any public or quasi-public use or improvement by virtue of the power Df eminent domain, Developer shall have no obligation to rebuild the applicable Parking Garage or damaged portion thereof, but to the extent the Developer reconstructs the remaining pDrtions of the applicable Parking Garage and the City provides the Developer with sufficiei'\t funds for the rebuilding of the City Facilities (whether by insurance proceeds, condemnation awards, or otherwise) then the Developer shall rebuild the City Facilities at the same time, Nothing set forth herein is intended to prohibit the City from its right to seek a condemnation award for its interest in the City Facilities in the event of a taking of the City Facilities. (f) The terms "liability" or "liable" as used herein shall include, without being limited to, any loss, cost, claim, damage, fine, penalty or expense. 11. Assianabilitv, (a) Except as otherwise herein expressly provided in this Agreement, neither Grantee nor its successors-in-interestby operation of law or otherwise shall sell, convey, transfer or assign this Agreement or sublease the City Facilities or any part thereof, or permit the same to be used or occupied by anyone, or mortgage, pledge or hypothecate its estate or grant any concession or license within any Parking Garage and any attempt to do any of the foregoing -10 - shall be void and of no force or effect. Notwithstanding the foregoing, Grantee shall be permitted to mortgage or pledge or otherwise hypothecate its interest in the City Facilities, to the extent permitted by law, for the purpose of obtaining the funds necessary to pay the Purchase Price for the City Facilities. In the event Grantee shall propose to sell, convey, transfer or assign its interests in this Agreement or sublease the City Facilities, Developer shall have a "right of first refusal" in respect of such transaction. With Developer's prior reasonable approval, Grantee shall have the right to grant a concession or management agreement to a concessionaire or managing agent with experience in operating parking garages for the purpose of operating of the City Facilities on behalf of Grantee; provided, however, that any such concessionaire or managing agent approved by Developer shall be bound by the terms and conditions of this Agreement and any failure by such concessionaire or managing agent to perform strictly in accordance with the terms hereof shall be deemed to be a default by Grantee hereunder. (b) The parties hereto acknowledge that the Developerw[1l require financing to obtain the funds necessary for the construction of the Development, including each Parking Garage. In the event any such lender shall require modifications of this Agreement as a condition prece.dent to such funding, Grantee agrees to reasonably consent tD same provided the requested modifications will not increase the obligations of Grantee nor diminish the rights of Grantee hereunder. 12. Term of Aareement. It is intended and agreed that this Agreement be recorded in the Public Records of Miami-Dade County, Florida, and be a cDvenant running with the title to the Property, for an initial term of twenty (20) years and shall thereafter automatically renew for consecutive twenty (20) year periods unless terminated in writing by all Df the parties hereto. 13. Entire Aareement. The Settlement Agreement, the Parking License, the Improvements License and this Agreement represent the entire agreement of the parties hereto and no other prior or present agreements or representations shall be binding upon any of the parties hereto, unless specifically incorporated herein by reference, whether such prior or present agreements have been made orally or in writing. No modification, change, amendment or extension of the terms or provisions of this Agreement shall be valid or binding upon any of the parties unless in writing and executed by the parties to be bound thereby. 14. Notices and Demands. All notices, demands, correspondence and communications between the City, the Agency and Developer shall be deemed sufficiently given under the terms of this Agreement if dispatched by registered or certified mail, postage prepaid, retum receipt requested, addressed as follows: If to the City or the Agency: 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager '- 11 - with copies to: 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Attorney -and- Steel Hector & Davis LLP 4000 First UniDn Financial Center Miami, Florida 33131 Attention: Thomas V. Eagan, P.A. If to Developer: clo Portofino Group 404 Washington Avenue, Suite 120 Miami Beach, Florida 33139 Attention: Margaret Nee with a CDPy to: Greenberg Traurig, P.A. 1221 Brickell Avenue Miami Florida 33131 Attention: Matthew B. Gorson, Esq. If to Marina Lessee: Miami Beach Marina Associates, Ltd. 300 Alton Road Miami Beach, Florida 33139 Attention: RobertW. Christoph Bilzin Sumberg Dunn & AxelrDd LLP 2500 First Union Financial Center Miami, Florida 33131 Attention: Carter~cDowell, Esq. or to such other address and to the attention of such other person as to the City, the Agency, Developer or Marina Lessee may from time to time designate by written notice to the others. with a copy to: 15. Cactions, The captions of this Agreement are fDr convenience and reference only, and in no way define, describe, extend or limit the scope or intent hereof. 16. Governina Law - Venue. This Agreement shall be govemed in its enforcement, construction and interpretation by the laws of the State of Florida. This Agreement is being executed and delivered in conjunction with the Settlement Agreement and the resolution of any disputes hereunder shall be under the continuing jurisdiction and authority of, and shall be submitted for resolution to, the Circuit Court of the 11th Judicial Circuit, Miami-Dade County, Florida pursuant to the Settlement Agreement. The parties hereto waive a trial by jury of any and all issues arising in any action or proceeding between them or their successors or assigns under or in connection with this Agreement or any of its provisions or any negotiations in connection therewith. This Agreement shall not be more strictly construed against either party, both parties having participated in the negotiation and preparation hereof, In the event of any litigation between the parties under this Agreement for a breach hereof, the prevailing party shall be entitled to reasonable attorneys' fees and court costs at trial and all appellate levels. - 12- ~ f" '4 17. Relationship of Parties, It is specifically understood and agreed by and between the parties hereto that: (a) the subject development is a private development; and (b) the relationship of the parties is contractual in nature, and neither the City nor the Agency is a joint venturer, partner or agent of Developer. No third party, other than the Marina Lessee as specifically provided herein, shall be deemed a third party beneficiary of this Agreement, nor shall the same be enforceable by any such third party. 18. Time is of the Essence. The parties specifically agree that time is of the essence regarding this Agreement. 19. Parties Bound. The City and the Agency shall be jointly and severally liable and bound under this Agreement, and the Developer shall be bound by this Agreement. 20. Severabilitv, If any term or provision of this Agreement or the application thereof to any persons Dr circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons Dr circumstances other than those as to which it is held invalid or unenforceable, shall not be affected and the same shall be enforced to the fullest extent permitted by applicable law. -13 - . 21, Further Assurances. The parties hereto shall forthwith execute and deliver all other appropriate supplemental agreements or other instruments or documents and take any other action required to accomplish the purposes described herein, IN WITNESS WHEREOF, this Agreement has been executed by the parties on the day and year first above written, ~~~~~ wrtness:~"'~~/ CITY OF MIAMI FIDrida municipal c FLORIDA, a By: CITY ATTORNEY ATTEST:~ ~ lL{ r Cu~ CITY CLERK APPROVED: W~a.-XL""J}!J:f; "'~{~V>o?y~ MIAMI AGENCY BEACH REDEVELOPMENT By: Title: 1I1A ATTEST: ~~T~ STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this uf1aay oJ.-~~ 1999 by Neisen O. Kasdin, as Mayor of the CITY OF MIAMI BEACH, a FIDrida municipal corporation, on behalf of the corporation. He personally appeared before me, is personally known to me or . produced as identification. OFFlOALNOTARYSEAL . ~ ULLlAN BEAUCHAMP . NOTARY PUBUC Sf ATE OF FLORlDlII tary: 1 [NOTARIAL SEAL COMMISSION NO, CC738372 nt N~ {~I ~ C- Y COMMISSION EX?, APR. 29 t P bl' St t f FI .d ary U IC, a e 0 on a My commission expires: r./ - 7.A - '2-CO"'"L- APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION APPROVED AS 10 FORM & LANGUAGE & FOR EXECUTION A1ii1JdL R evelopment Agency General Counsel - 14- 1f1~ V~J1 Date STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) ~ 1. _ . T~ foregoing instrument was acknowledged before me this 2J!!day of .t:::f.1999 by (!!!J.s..J 0. I~J.J/~ ,as fJ..lJ;rJ..4 ~ of the MIAMI BEACH REDEVELOPMENT AGENCY, a public agency organized pursuant tD the Community RedevelopmentAct of 1969, as amended, on behalf of the agency. ~/~y personally appeared before me,~cue-personally known to me or produced ~ as identification. . [NOTARIAL SEAL] OFFlClALNOTARYSEAL ULLIAN BEAUCHAMP NOrARY PUBUC Sf ATE OF FLORIDA COMMISSION NO, CC738372 MY COMMISSION EXP, APR. 29 2002 . - 15 - , ~ Notary: ~.i . Print Name: ti;';:' ~~';f Notary Public, State of Florida My commission expires: Y'~ ~- 'Z-O,,~ , Signed, sealed and delivered in the presence of: WEST SIDE PARTNERS, LTD., a Florida limited partnership By: Na Title: President ide Partners, Inc., a Florida . ,Ge al Partner By: [CORPORATE SEAL] Name: STATE OF FLORIDA ) )SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this /z.rt day of April, 1999, by Thomas Kramer, as President of West Side Partners, Inc., a Florida corporation, which is a general partner of West Side Partners, LId" a Florida limited partnership, on behalf of the corporation and the partnership, He personally appeared before me, is ers II no me or produced as identification. [NOTARIAL SEAL] Notary: Print N e: Notary Public, State of Florida My Commission Expires: OFFlOAL NOTARY SEAL STEVEN M HELFMAN NOTARY PllBUC Sf ATE OF FLORIDA COMMISSION NO. CC7266S1 MYCOMM\SSIONEXP.APR,14 JOINDER AND CONSENT The undersigned Marina Lessee hereby consents to the foregoing Agreement and agrees to be bound to the provisions of the Agreement which pertain specifically to the Marina Lessee. MIAMI BEACH MARINA ASSOCIATES, LTD., a Florida limited partnership By: SoBe Marine, Inc., a Florida corporation, its general partner ~lr.'1ir;E. AI ~..ura}.'-' [CORPORATE SEAL] STATE OF FLORIDA ) ) SS: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me thi~~APril, 1999 by Robert W. Christoph, as President of SoBe Marine, Inc., a Florida corporation, the general partner of MIAMI BEACH MARINA ASSOCIATES, L TO" a Florida limited partnership, on behalf of said corporation ar}d pai;lnesship_. He personally appeared before me, is personally known to me or produce(t~ ~~.(l as identification. ~, '. Notary: .'_. Print Na Notary ublic, State of My commission expires: [NOTARIAL SEAL] r OFFICIAL NOTARY SEAL . DIANNE CAPESTANY NOTARY PUBUC STATE OF FLORIDA COMMISSION NO. CC6fJ9787 MY COMMISSION EXP. Ave, 12 001 EXHIBIT "A" SSDI NORTH LEGAL DESCRIPTION Lots 30 thrDugh 42 inclusive, in Block 111, Df OCEAN BEACH FLORIDA ADDITION NO.3, according to the Plat thereof recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, together with the accretions thereto. ALSO: Lots 43, 44, 45, 46, 47, 48A, 49B and 50C of DADE COUNTY PROPERTY AT MIAMI BEACH AMENDED PLAT OF LOTS 43 TO 50 INCLUSIVE. BLK 111, OCEAN BEACH ADDITION NO. 3, according tD the Plat thereof recorded in Plat Book 14, at Page 70, of the Public RecDrds of Dade County, Florida, together with the accretions thereto. '. EXHIBIT "B" SOUTHERLY PORTION OF SSDI SOUTH LEGAL DESCRIPTION Lots 1 through 7, inclusive and Southeasterly 30,00 feet of Lot 8, the Northwesterly line of said 30.00 feet being parallel to the common line between Lots 7 and 8, in Block 111, of OCEAN BEACH FLORIDA ADDITION NO, 3, according to the Plat thereof recorded in Plat Book 2, at Page 81, of the Public Records of Dade County, Florida, together with the accretions thereto. ALSO: That part of Biscayne Street (also knDwn as Biscayne Avenue) as shown on said Plat of OCEAN BEACH FLORIDA ADDITION NO.3, lying Westerly of the Southerly projection of the West Right of Way line of Jefferson Avenue as shown on said Plat and being bound on the West by Biscayne Bay, together with the accretions thereto. ALSO: All that part of the North 132.0 feet of Section 10, Township 54 South, Range 42 East, described as: Beginning at a point on the Northern boundary of said Section 10, which is intersected by the Easterly boundary of Jefferson Avenue extended Southerly across Biscayne Street as a point or place of beginning; thence Southerly continuing the Easterly boundary of Jefferson Avenue extended for a distance of 132.0 feet to a point; thence Westerly 208,1 feet more or less along a line parallel to and 132.0 feet Southerly from the Northern line of said Section 10 to Biscayne Bay; thence Northwesterly meandering the Bay to the intersection of the Northern line of Section 10; thence Easterly along the Northern line of Section 10, 285.0 feet more or less to the point or place of beginning (the Northerly boundary of said Section 10 being common with the Southerly boundary of Biscayne Street); Also described as: All of that part of the North 132.0 feet of Section 10, Township 54 South, Range 42 East, known as Tract A or the Smith Company Bay Front Tract, more particularly described as follows, to wit: Bounded on the NDrth by the Northern line of said Section 10; bounded on the East by the East line of Jefferson Avenue extended; bounded on the South by a line parallel to and distant 132.0 feet South of the Northern line of said Section 10, and bounded on the West by Biscayne Bay, together with the accretions thereto, EXHIBIT "C" SECTION 4.2.2.1.1 OF SETTLEMENT AGREEMENT 4,2.2.1.1 Parkin" Spaces. In connection with the construction of the buildings on SSDI North and ssm South, West Side agrees to construct the following parking spaces in a parking garage and will sell (or lease) said parking spaces to the City for $10,000 per parking space (said cost per parking space shall increase based upon an adjustment for any increase in the cost Df construction in South Florida pursuant to a cost of living index to be set forth in the New Parking Agreement), to wit: 4.2.2.1.1.1 ssm North.. With respect to the future build-out of ssm North, West Side shall locate 370 parking spaces on all of ssm North; provided, however, that the number of parking spaces may be reduced based upon the needs of the Marina Lessee for bathroom and laUndry facilities (~o be -similar in size and scope to those provided on the northerly portion of ssm South in the building commonly referred to as the "Yacht Club") and office and/or retail facilities (similar to those existing as of the date hereof in the Juniors Building, but in any event not to exceed 7,500 square feet of floor area, and not to contain any food or beverage sales or service) in said parking garages. West Side has agreed to exercise all reasonable efforts so as to design and construct the buildings on ssm North so that all of the parking spaces for the City (to be used by the Marina Lessee) can be located on the ground level; provided, however, that the City and the Marina Lessee acknowledge and agree that: (i) it may be necessary for West Side to construct some of the parking spaces for the City for use by the Marina Lessee on the second floor of the parking garage, and (ii) in addition to the parking spaces on the ground level to be constructed for the City for use by the Marina Lessee, West Side may also construct on the ;. ground level appropriate "porte cochere" or other entrances and short-term parking for the subject Project. together with loading docks, trash removal facilities and other service facilities (collectively, the "Back of the House Facilities"), as deemed appropriate by West Side. provided, however, that any Back of the House Facilities constructed on part of the Project (as defIned below) located on the southerly portion of ssm North shall be subject to the normal design review process and approval by the Design Review Board (the "ORB"). In the event that West Side is successful in designing said parking garage to allow for more than 370 parking spaces on SSDI North for the City (to be used by the Marina Lessee), then the number ofl'arking spaces to be located on the southerly portion of SSDI South as otherwise provided below shall be reduced by the number of spaces so provided in excess of 370 on ssm North. In the event that the parking spaces in the southerly portion of SSDI South are reduced due to the positioning of the tower on the parking pedestal, as provided in . , . the 1998 Concept Plan (~, as a result of the "turning" of the building from a purely horizontal position, in relationship to Alton Road), and said parking spaces are not otherwise made up through the construction of additional parking spaces on SSDI North, then the Marina Lessee agrees that not more than 55 parking spaces may be made up through the use of tandem parking by valet on SSDI North in the space allocated for a minimum of 370 parking spaces in the parking garages to be constructed on SSDI North; and West Side agrees to make reasonable efforts to design the building to accommodate up to 55 tandem parking spaces; provided, however, that the design of the building shall be solely within West Side's discretion, and such design-of the building shall not in any way: (i) interfere with West Side's (including West Side's successors or assigns) access to West Side's Projects, including, but not limited to, driveup parking and/or the use of the entranceways, loading , docks, trash removal facilities or other service facilities, (ii) delay the construction of the Projects, or (iii) increase the cost of construction of the building. 4,2.2.1.1.2 SSDI South. With respect to the future build-out of the southerly portion ofSSDI South, West Side shall seek to locate approximately liS parking spaces on such southerly portion of SSDI South; provided, however, that the number of parking spaces at this location may be reduced in connection with the following events: (i) in the event that more than 370 parking spaces are provided on SSDI North, then the parking spaces to be provided on the southerly portion of ssm South shall be reduced by one parking space for each parking space provided on SSDI North in excess of 370 parking spaces, and (ii) the 1998 Concept Plan will provide for the "turning" of the building to be built on the southerly portion of ssm South, which may result in a reduction in the actual number of parking spaces which West Side can reasonably develop for the City (for use by the Marina Lessee) on the ground level of such buildings' parking garage in which event West Side shall be permitted to reduce the number of parking spaces otherwise required on the southerly portion of ssm South to be provided to the City (for use by the Marina Lessee); provided, further, that in no event shall there be less than 60 parking spaces so provided by West Side to the City (for use by the Marina Lessee) on the southerly portion of ssm South. The City and the Marina Lessee acknowledge and agree that in addition to the parking spaces on the ground level to be constructed for the City for use by the Marina Lessee, West Side may also constrUCt on the ground level appropriate "porte cochere" or other entrances and short-term parking for the subject Project, together with loading docks, trash removal facilities and other service facilities. as deemed appropriate by West Side. ... S.A. 4.2,2.2 @ PREPARED BY AND RETURN TO: Thomas V. Eagan, P.A. Steel Hector & Davis LLP 200 South Biscayne Boulevard Snite 4000 Miami, Florida 33131 RELEASE OF ACCESS AND UTILITY EASEMENTS Know All Men By These Presents, . That the CITY OF MIAMI BEACH, FLORIDA, a Florida municipal corporation (the "City") for value received, does hereby forever release, terminate, cancel, and discharge those easements reflected in that certain Access Easement recorded in Official Records Book 13368, Page 2769 of the Public Records of Miami- Dade County, Florida and that certain Utility Easement recorded in Official Records Book 13368, Page 2774 of the Public Records of Miami. Dade County, Florida and hereby directs the Clerk of the said Circuit Court to satisfY and discharge the Access Easement and the Utility Easement of record, tn 1-: ~ ~ IN WITNE ~ WHEREOF, the City has caused these presents to be duly execute~this E ,day of , 19'-q-' Signed, seale and delivered CITY OF MIAMI BEA H, FLORIDA, in the presence of a municipal corpo o ~ ~ By: Name: Title: Address: 1'1. Ne,ser? o. rasJ,;, mPiAfOr 1")00 f.uru..kn te-..J.r,..- m,pmi Ibtml.- It.. 33/3't STATE OF FLORIDA ) ) ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this U1ay of H:7. . 199t. by ;./lI,~ 1'). /r~ f~ as J1L~CV-- of City of Miami Beach, Florida, a municip corporation, on behalf of the municipal corporation, e/tMe personally appeared before me, is personally known to me or produced - -- as identification. ~ij~L'-'~ Print Name: II ~ Notary Public, State of Florida CommissionNumber:~?jSl3 71.- Commission Expires: Y~'2-'J- ~O"L- (Notarial Seal) APPROVED AS 10 FORM & LANGUAGE & FOREXECunON FFlCIALNOTARY ULLIAN BEAUCHAMP NOTARYPUBUC Sf ATE OF FLORIDA COMMISSION NO, CC738372 MY COMMISSION EXP, APR, 29 2002 ~b~ (JfJ i(,tlRJL ~/fq C. may Dale