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331-99 RESO - , '.' ,~ '-~ RESOLUTION NO. 331-99 A RESOLUTION OF THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY APPROVING THE PARKING FACILITY MANAGEMENT AND OPERATION AGREEMENT FOR THE MIAMI BEACH MARINA BY AND BETWEEN MIAMI BEACH MARINA ASSOCIATES, LTD., THE CITY OF MIAMI BEACH AND THE MIAMI BEACH REDEVELOPMENT AGENCY. WHEREAS, the City entered into a Fourth Amendment to the Marina Lease Agreement between the City of Miami Beach (the "City) and Miami Beach Marina Associates, Ltd, (the "Marina operator"), which provides for the City and the Marina operator to enter into a garage management or operating agreement; and WHEREAS, the Fourth Amendment provides for the City to be responsible for the initial capital cost of the garage, the electric utility costs of the garage spaces, real estate taxes, including special assessments or other similar charges, and any "pass through" fees or costs or insurance imposed and further provides for the Marina lessee to be responsible for routine security, maintenance and insurance for the operation of the Marina parking; and WHEREAS, such terms are memoralized in the attached Parking Facility Management and Operations Agreement; and WHEREAS, the proposed Parking Facility Management and Operations Agreement provides that the Marina Lessee will operate the Marina garages for the City in accordance with policies to be established by the Marina Lessee to insure the first class continuing success of the Marina; and WHEREAS, the proposed Agreement also provides for the City/Agency to receive 35% of any gross parking revenues, in the event that fees for parking are ever charged; and WHEREAS, the construction of said facilities is nearing completion and is estimated to obtain a Temporary Certificate of Occupancy (TCO) in December 1999 and therefore, it is recommended that the Board authorize execution of the Parking Facility Management and Operation Agreement for the Miami Beach Marina for the commencement of garage operations. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY, that the Members of the Miami Beach Redevelopment Agency approve the Parking Facility Management and Operation Agreement for the Miami Beach Beach Marina by and among Miami Beach Marina Associates, Ltd., the City of Miami Beach and the Miami Beach Redevelopment Agency. - . ',t ", PASSED and ADOPTED this ~ day of December, 1999, ~ CHAIRMAN ATTEST: ~;rrtUU~ SECRETARY SRlCMC/rar ,'l(,,0'.'~D AS 10 FORM & LANGUAGE & FOR EXECunON T:\AGENDA \ I999\DECO 199\RDA \MARINARD.RES (Resolution No. 331-99) ~~ eveIOome.nl Aqe~Cf (l ~/0-~ Dale Miaini Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Telephone: (305) 673- 7295 Fax: (305) 673- 7772 ',' 'I,.. REDEVELOPMENT AGENCY MEMORANDUM NO. 99-1../ December 1, 1999 TO: Chairman and Members of the Miami Beach Redevelopm t Agency FROM: Sergio Rodriguez Executive Director SUBJECT: A RESOLUTION HE CHAIRMAN AND MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY APPROVING THE PARKING FACILITY MANAGEMENT AND OPERATION AGREEMENT FOR THE MIAMI BEACH MARINA BY AND BETWEEN MIAMI BEACH MARINA ASSOCIATES, LTD., THE CITY OF MIAMI BEACH AND THE MIAMI BEACH REDEVELOPMENT AGENCY. RRCOMMENDA nON: Adopt the Resolution, ANALYSIS: The City entered into a Fourth Amendment to the Marina Lease Agreement between the City of Miami Beach (the "City) and Miami Beach Marina Associates, Ltd. (the "Marina operator"), which provides for the City and the Marina operator to enter into a garage management or operating agreement. The Fourth Amendment provides for the City to be responsible for the initial capital cost of the garage, the electric utility costs of the garage spaces, real estate taxes, including special assessments or other similar charges, and any "pass through" fees or costs or insurance imposed and further provides for the Marina lessee to be responsible for routine security, maintenance and insurance for the operation of the Marina parking, Such terms are memoralized in the attached Parking Facility Management and Operations Agreement, Pursuant to the Development Agreement, the City, RDA and West Side entered into a Parking Agreement, dated as of January 10, 1996, pursuant to which West Side would provide parking spaces, laundry and bathroom facilities for the Miami Beach Marina in a building to be constructed on the parcel known as ssm South, kin/a The Yacht Club at Portofino, (the "Parking Agreement"). The Parking Agreement survived the 1995 Settlement Agreement with Porto fino, S()UTti V()I!lll/TI: I:>edevel()pment Ulstlict <<Agenda Item l2ede'\ D ate ',' " , Miami Beach Marina December], ] 999 Redevelopment Agency Memorandum Page 2 The Yacht Club at Portofino has preliminarily estimated the Marina Lessee'S/City's proportionate share of operating expenses for the parking, laundry and bathroom facilities to be $84,000 and broken down as follows: Common Area Maintenance (CAM) Charges Payment Responsibility Proportionate Shlltt Security Taxes Insurance Maintenance Marina Lessee Agency/City Marina Lessee Marina Lessee $ 24,791.04 46,747.50 4,911.62 7.476,05 Proportionate CAM Charges $ 83,926.21 On March 17, 1999, the RDA Board, appropriated funding for the payment of the capital cost of the garage, laundry and bathroom facilities and for the City's proportionate share of operating expenses and further authorized execution of the Lease Agreement between the City and the Yacht Club at Portofino, dated as of November 30, 1998, for said parking spaces, laundry and bathroom facilities, The proposed Parking Facility Management and Operations Agreement provides that the Marina Lessee will operate the Marina garages for the City in accordance with policies to be established by the Marina Lessee to insure the first class continuing success of the Marina. The proposed Agreement also provides for the City/Agency to receive 35% of any gross park revenues, in the event that fees for parking are ever charged, The construction of said facilities is nearing completion and is estimated to obtain a Temporary Certificate of Occupancy (TCO) in December 1999, Therefore, it is recommended that the Board authorize execution of the Parking Facility Management and Operation Agreement for the Miami Beach Marina for the commencement of garage operations, ~tl\e SRlCMC/rar T:\AGENDA\1999\DECOI99\RDA\MARINA-P WPb '" 'I, " RESOLUTION NO. 99-23407 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE PARKING FACILITY MANAGEMENT AND OPERATION AGREEMENT FOR THE MIAMI BEACH MARINA BY AND BETWEEN MIAMI BEACH MARINA ASSOCIATES, LTD., THE CITY OF MIAMI BEACH AND THE MIAMI BEACH REDEVELOPMENT AGENCY. WHEREAS, the City entered into a Fourth Amendment to the Marina Lease Agreement between the City of Miami Beach (the "City) and Miami Beach Marina Associates, Ltd. (the "Marina operator"), which provides for the City and the Marina operator to enter into a garage management or operating agreement; and WHEREAS, the Fourth Amendment provides for the City to be responsible for the initial capital cost of the garage, the electric utility costs of the garage spaces, real estate taxes, including special assessments or other similar charges, and any "pass through" fees or costs or insurance imposed and further provides for the Marina lessee to be responsible for routine security, maintenance and insurance for the operation of the Marina parking; and WHEREAS, such terms are memoralized in the attached Parking Facility Management and Operations Agreement; and WHEREAS, the proposed Parking Facility Management and Operations Agreement provides that the Marina Lessee will operate the Marina garages for the City in accordance with policies to be established by the Marina Lessee to insure the first class continuing success of the Marina; and WHEREAS, the proposed Agreement also provides for the City/Agency to receive 35% of any gross parking revenues, in the event that fees for parking are ever charged; and WHEREAS, the construction of said facilities is nearing completion and is estimated to obtain a Temporary Certificate of Occupancy (TCO) in December 1999 and therefore, it is recommended that the Board authorize execution of the Parking.facility Management and Operation Agreement for the Miami Beach Marina for the commencement of garage operations, NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission approve the Parking Facility Management and Operation Agreement for the Miami Beach Beach Marina by and among Miami Beach Marina Associates, Ltd., the City of Miami Beach and the Miami Beach Redevelopment Agency, '. " , " PASSED wd ADOPTED "';, -"', doy of Decem"',. 1999. ~ AYOR ATTE~J' ~ (U cileY'- CITY CLERK Ai'i'ROVED AS TO FORM & LANGUAGE & FOR EXECUTION SR/CMC/rar ,{:I( ff11ff~ ./. : ,"',~v / (-I 'l'-:/J DtlliI T:\AGENDA \ 1999\DECO 199\RDA \MARINA.P_RES (Resolution No. 99-23407) .' 'f, , , CITY OF MIAMI BEACH ~ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH. FLORIDA 33139 :1l1p:\\ci.miami-beach. f1.us COMMISSION MEMORANDUM NO, 88':)- '1 ~ TO: Mayor Neisen O. Kasdin and Members of tbe City. ommission DATE: December I, 1999 FROM: Sergio Rodriguez City Manager SUBJECT: A RESOL ON OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE PARKING FACILITY MANAGEMENT AND OPERATION AGREEMENT FOR THE MIAMI BEACH MARINA BY AND BETWEEN MIAMI BEACH MARINA ASSOCIATES, LTD., THE CITY OF MIAMI BEACH AND THE MIAMI BEACH REDEVELOPMENT AGENCY. RECOMMENDATION: Adopt the Resolution. ANALYSIS: The City entered into a Fourth Amendment to the Marina Lease Agreement between the City of Miami Beach (the "City) and Miami Beach Marina Associates, Ltd. (the "Marina operator"), which provides for the City and the Marina operator to enter into a garage management or operating agreement The Fourth Amendment provides for the City to be responsible for the initial capital cost of the garage, the electric utility costs of the garage spaces, real estate taxes, including special assessments or other similar charges, and any "pass through" fees or costs or insurance imposed and further provides for the Marina lessee to be responsible for routine security, maintenance and insurance for the operation of the Marina parking, Such terms are memoralized in the attached Parking Facility Management and Operations Agreement Pursuant to the Development Agreement, the City, RDA and West Side entered into a Parking Agreement, dated as of January 10, 1996, pursuant to which West Side would provide parking spaces, laundry and bathroom facilities for the Miami Beach Marina in a building to be constructed on-the parcel known as SSDI South, kin/a The Yacht Club at Portofino, (the "Parking Agreement"), The Parking Agreement survived the 1995 Settlement Agreement with Porto fino, The Yacht Club at Portofino has preliminarily estimated the Marina Lessee's/City's proportionate share of operating expenses for the parking, laundry and bathroom facilities to be $84,000 and broken down as follows: AGENDAITEM~ DATE~ " " , c, Miami Beach Marina December I, 1999 Commission Memorandum Page 2 Common Area Maintenance (CAM) Charges Payment Responsibility Proportionate S!!..au Security Taxes Insurance Maintenance Marina Lessee Agency/City Marina Lessee Marina Lessee $ 24,791.04 46,747,50 4,911.62 7 476 05 Proportionate CAM Charges $ 83,926.21 On March 17, 1999, the RDABoard, appropriated funding for the payment of the capital cost of the garage, laundry and bathroom facilities and for the City's proportionate share of operating expenses and further authorized execution of the Lease Agreement between the City and the Yacht Club at Portofino, dated as of November 30, 1998, for said parking spaces, laundry and bathroom facilities, The proposed Parking Facility Management and Operations Agreement provides that the Marina Lessee will operate the Marina garages for the City in accordance with policies to be established by the Marina Lessee to insure the first class continuing success of the Marina, The proposed Agreement also provides for the City/Agency to receive 35% of any gross park revenues, in the event that fees for parking are ever charged, The construction of said facilities is nearing completion and is estimated to obtain a Temporary Certificate of Occupancy (TCO) in December 1999, Therefore, it is recommended that the City Commission authorize execution of the Parking Facility Management and Operation Agreement for the Miami Beach Marina for the commencement of garage operations, '11' SR/CMC/rar T.\AGENDA\l999\DECOI99\REGULAR\MARfNA-P eM " " , , , PARKING FACILITY MANAGEMENT AND OPERATION AGREEMENT for the MIAMI BEACH MARINA By and Among Miami Beach Marina Associates, Ltd. and The City of Miami Beach and Miami Beach Redevelopment Agency Prepared By: Lawrence A. Levy First Assistant City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 flA ITOIlEV1.\.\lARINA\MARP AR!';5. "pi! No"cmbcrIJ,IY9Yt7'2JPM) .' PARKING FACILITY MANAGEMENT AND OPERATION AGREEMENT MIAMI BEACH MARINA Table of Contents Index of Defined Terms. . . . . . . . . . . . . . . . . . Recitals . . . . . . . . . . . . . . . . . , . . . . . . . ....1 Article 1 - Definitions . . . . . . . . . . . . . . Section 1.1. Meaning of Words and Terms 2 . .. .. . . . . . ..2 Article 2 - Parking Facilities . . . , . . . ' . . . . . . . . . . . . Section 2,1. Parking Facilities ............ ....3 ..... .3 Article 3 - Management of the Parking Facilities and Ancillary Facilities Section 3.1. Management.,............ . . . . .. . . . . . . . . . Section 3.2. Duties.......,............,................. Section 3.3. Baywalk........................................... Section 3.4. Security.................................,... Section 3.5. Independent Contractors ......... . . . . . . . ..4 ....4 .4 ....5 ...5 ... 5 Article 4 - Maintenance and Operation of Parking Facililies . . . . . . Section 4.1. Maintenance Standards . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . Section 4.2, City and/or Agency Obligations ........... Section 4.3, Inspections,.........,........................... Section 4.4. Signs.....,.................................. . .. . 5 .5 ....6 .......6 ........6 Article 5 - Parking Control Equipment. ................................,..... Section 5.1. Marina Lessee to Provide Equipment. . . . . . . . . . . , . . . . Section 5.2. Repair and Replacement. ............... . . . . . . . . . . . . . . . . ..7 .7 . ..7 Article 6 - Parking Charges, .,............................,.. Section 6.1. Establishment of Parking Charges. .......... . . ...7 ....7 Article 7 - Employees. . . . ' . , . , . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Section 7.1, Personnel.,....,............................. . . . . . . . . 7 Section 7.2, No Discrimination in Employment. ....................,.. . . . 7 Section 7.3. Compliance with Laws and Regulations. . . . . . . . . . . 8 Section 7.4. Conduct of Employees. . . . . . . . . 8 Article 8 - Labor Matters .,....,...,......... ..................... . 8 Section 8,1. Marina Lessee Responsible for Labor Relations. ...... . 8 Section 8.2. Unions. .....,.......... . . . . . . . . , . . . . . . . . . . . . . . . . 8 Article 9 - Books of Account . . .. . .. . ..8 F.\A TTOIlEVL\MAAINAlt.!ARPAR)o;5." I'd N",cmberIR,."')9(72JPM) " , . Section 9.1, Section 9.2. Section 9.3. Accounting. .,..................... Annual Report; Audit. . . . . . . . . . . . . . . . Interest on Amounts Due; Shortages. . . . . . . . . . . 8 ..8 ...8 Article 10. - Insurance and Claims. '... . . . . . . . . . . . . . . . . . . . . . . . . . Section 10,1. Liability Insurance. ...................... Section 10.2, Indemnification. ........ . . , . . . Section 10,3. Unrelated Valet Operators . . . . . . . . . . . . . .8 .8 ..9 ..9 Article 11 - Term .. . . . . . . . . . , . . . . . . . . . . . . . . .. . . . . . . . . . . . Section 11.1. Term. ....................:....... ..............9 ............9 Article 12 - Default. . . . . . . . . . . . . , . . . . . . . . . . . . , . . . . . . . . . . . . . . . Section 12.1. Events of Default and Remedies; Terminalion. ...........9 ............9 Article 13 - Independent Contractor; Subordination. ........,............ Section 13.1, Independent Contractor; Agreement Subordinate. ...........9 ...........9 Article 14. Environmental Indemnity, ..... Section 14.2. Survival. .. . . . . . . . . . . . . ..,. ... . 10 . . . . . . . . . . . . . . . 10 Article 15 - Notices, Consent, etc. . ' . . . . . . . . . , . . . . . . . . . , . . . . Section 15.1, Notices Between Parties. ........... Section 15.2. Change of Address. . . . . . . . . . . . . . . . . . . . . . ....,....10 ...,........10 ..........11 Article 16 - Limitation of Liability; No Conflict of Interest. ' . . , . . . . . . . Section 16.1, Limitation of Liability. ............,...... Section 16,2. No Conflict of Interest. .................... . . . . . , . , . ' . . , 11 ............ .11 . . . . . . . . . . . . . 11 Article 17 - Assignment; Subcontracts; No Liens or Encumbrances. . . . Section 17.1. No Assignment of Agreement; No Subcontracts. ............11 .........11 Article 18 - Miscellaneous. ...,.,.,..,.............,............ .. , . , . , . , . . . 12 Section 18.1. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . , . . . . . . . , . 12 Section 18.2. Governing Law. ........................ . . . . . . . . . . . 12 Section 18.3. Severability, .,........,.........,...................,.... 12 Section 18.4. Recording in Public Records. .' . . , . . . . . . . . . . . . . . . , . . . . . . . . 12 Section 18.5. No Continuing Waiver. ....'.,...............,.............. 12 Section 18,6. Table of Contents and Headings. . . , . . . . . . . . . . . . . . . . . . . . , 12 Section 18.7. No Waiver of Police or Governmental Power. ,... . . . . . , . . . 12 Section 18.8. Time of Essence. ...............,... . . . . . . . . . . 13 Section 18.9. Interpretation....,............. . . . 13 Section 18.10, Entire Agreement; No Amendments . . . . . , . .. . 13 LIST OF EXHIBITS. . . . . . 17 F;\A TIOILEVLIMAR1NA\MAAtARK~....pe1 N",'ombe,IK.19'1'l(11JPM) .' PARKING FACILITY MANAGEMENT AND OPERATION AGREEMENT MIAMI BEACH MARINA This Agreement (the "Agreement"). dated as of Ihe / "r day of fta/J;/JcIL , 1999, by and among Miami Beach Marina Associates, Ltd.. a Florida limited partnership (the "Marina Lessee"), the City of Miami Beach, Florida (the "City"). a political subdivision duly organized and existing under Ihe laws of the State of Florida, and the Miami Beach Redevelopment Agency ("Agency"), a Florida public agency organized and existing pursuant to the Community Redevelopment Act of 1969, Chapter 163, Part III, Florida Statutes, as amended. Recitals WHEREAS, West Side Partners, Ltd., a Florida limited partnership ("West Side"), is the owner of the southern portion of SSDI South (as more particularly described in Exhibit A attached hereto and made a part hereof) and SSDI North (as more particularly described in Exhibit B altached hereto and made a part hereof). Sun & Fun, Inc., a Florida corporation ("Sun & Fun"), and Beachwalk Development Corporation, a Florida corporalion ("Beachwalk"). are the owners of Goodman Terrace (as more particularly described in Exhibit C attached hereto and made a part hereof), East Coastline Development, Ltd., a Florida limited partnership ("East Coastline"), is the owner of the Alaska Parcel (as more particularly described in Exhibit D attached hereto and made a part hereof), and Azure Coast Development, Ltd., a Florida limited partnership ("Azure"), is owner of the Hinson Parcel (as more particularly described in Exhibit E attached hereto and made a part hereof) (West Side, Sun & Fun, Beachwalk, East Coastline and Azure hereinafter sometimes collectively referred to as the "Portofino Entities"); and WHEREAS, in order to resolve the controversies and the litigation involving SSDI North, SSDI South, and the Core Parcel (the legal description for Ihe Core Parcel being more particularly described in Exhibit F attached hereto and made a part hereof), the City, the Agency, and West Side entered into a stipulation and order ("Order") in the case styled West Side Partners. Ltd. a Florida limited partnership. Plaintiff, vs. Cily of Miami Beach, Florida, a Florida municipal corporation, and the Miami Beach Redevelooment City. a Florida municipal aqency orqanized and existinq pursuant to the Community Redevelopment Act of 1969, Defendants, in the 11th Judicial Circuit in and for Miami-Dade County, Florida, Case No. 82.24526.CA-30 (the "1997 Litigation"); and WHEREAS, the 11th Judicial Circuit in and for Miami-Dade County, Florida approved the Order on October 19, 1998; and WHEREAS, the SSDI North parcel, which is currently utilized by the Marina Lessee for parking, under that certain Lease Agreement, dated June 24, 1983 between the City of Miami Beach, Florida, and joined in by the Agency, and Carner-Mason Associates, Ltd., a memorandum thereof being recorded at Official Records Book 11963, Page 1143, Public Records of Dade County, Florida, as amended by First Amendmenl to Marina Lease Agreement (the "First Amendment") dated October 23, 1991, among the City, the Agency and Tallahassee Building Corp. ("TBC"), as further amended by Second Amendment to Marina Lease Agreement (the "Second Amendment"), dated August 11, 1994 between the City and TBC, as affected by Partial Release of Lease dated December 27. 1995 belween the Cily and TBC, recorded at Official FI,.l,TIOILEVUMARIS\\,\1AR"ARI<.:' "J'.! :-!"Hmbc, ,~. J'N'! 17 :lPMl .' ., , Index of Defined Terms Page 1997 Litigation ' . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . , . . . , . . . . . 1 Agency ,..,.,.,..........,.......... . . . . . . . .. . . . . . . . . . . . . . . . . 1 Agreement ..,.,.".,...",.....,..,... . . . . , . . . . . . . . . . . . . . . . . . . 1 Azure ....".,.......,.........,....... . . . . . . . . . . . . . . . , . " , . . . , . . . . . 1 Baywalk ",..............,.....,... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Beachwalk ,...,.,...,.,....."........,........,....................,..... 1 Business Day .,...........,........,.............,........,..........,..... 2 City. .,.... " " .,. .. ,. .". "" .. ... .. " . . .. ." . ... . ... .. .. .. . . " . 1 Commencement Date . . . . . , . . . . . . . . , , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 East Coastline , , , . . . . . , , . . , . . , , . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . , . , , ' 1 Environmental Laws .,..".,.....,.,.......... .."............,....,.....". 3 First Amendment. . , , . . . . . . , . . . . , . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . , . . . . . 1 Fiscal Year .,.,...,....,......".,....... . . . . . . . . . . . . . . . . . . . . , . . . . . . . . 3 Fourth Amendment . . . , . . . . . . . . , . . . . . . , . . . . . . . . . . . . .. ..,............. 2 Gross Receipts , . , , . . . . . . . , , ' . . , . . . . , . , . . . . . . . . . . . . . . . . . . . . . . . 3 Marina. . , , . . . . . , , , , . . . . . , , , , ' , , . . . . . . , , ' . . . . . . , , . ., . .. .. . . . . . , . , . . . . . , , . 2 Marina Lease ,..,...",.,..,...."........,....,.,..... . , . , . . . . . . . , , . . . . . 2 Marina Lessee .,..",.,.,..",.,...........,...,..........."".........,.. 1 Order"""",..,..,..,.....",.......................................... 1 Parking Facilities, . . . . , . . . . . . . , . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Permitted Users ,.,..,."..,.."...... . . . . . . . . . . . . . . . . . . . . . . . . , . 3 Portofino Entities . . . . . . , , . . . , . . . , . . , , . . . . . . . . . . . . . . . . . . . . . . , . , . . . . , . . . . . . . 1 Requirements . . . . . . . , , . . . . , . . . . . . , . . . . . . . . . . . . . . . . . . . , . . . . . . . . , . . . . . . . , . . . . 3 Second Amendment , . , . , . . . , , . . , . , . . . . , . . . . . . . , . . . . . . , . . . , . , . . . . . . . . 1 Settlement Agreement ,.,...",.,......,..,.....................,....,.,..... 2 Sun & Fun, , . . , . . , . . . , . . . . , . . . , . . . , . . , . . . . . . . . . . . , . . . . . , . . . . . . . . . . . . . . 1 TBC """".,.,...",.,..,.,.....,."..,......... ....".,..........1 Temporary Parking . . . . . . . . , . . , . , . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . , . 4 ~m...,....,."""...,.."",.,.,........"....................,.....3 Third Amendment . . , , , , . , . . . . , , , , , , , . , . . , . . . . . . . . , . . . . . . . . . . . . . , . . . , . . . 2 West Side , . . . . , . . . , . , . . . , , . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . 1 F IA TTOILEVl \MARINAIMARP ARK~"pI! No,-onlbcr l~, 19<N(1:1'PM) ,\ , Records Book 17077, Page 1193, Public Records of Dade County, Florida, and as further affected by Memorandum of Lease Amendments dated ,1997 among the City, Agency and TBC, recorded at Official Records Book _, Page , Public Records of Dade County, Florida, as further amended by Third Amendment 10 Marina Lease Agreement (the "Third Amendment") among the City, the Agency and Marina Lessee, dated as of May 27,1997, and a Fourth Amendment to Marina Lease Agreement (the "Fourth Amendment"), among the City, the Agency and Marina Lessee, dated as of April 15, 1998 (collectively, the "Marina Lease"), has been released from the Marina Lease, and will be transferred to Westside or its assigns; and WHEREAS, the City, the Agency and Westside have entered into a Settlement Agreement, dated as of April 15, 1998 (the "Settlement Agreemen't"), a copy of which is attached hereto as Exhibit H, in connection with the settlement of the 1997 Litigation; and WHEREAS, the Settlement Agreement provides for Wesl Side to provide temporary parking for the Miami Beach Marina (the "Marina"), during the construction of certain buildings (as set forth in the Settlement Agreement), and to lease parking spaces in said buildings, when they are completed, to the City, for use by the Marina, ; and WHEREAS, it is necessary and desirable that the City and Marina Lessee enter into an agreement for the management, maintenance and operation of the aforesaid temporary and permanent parking facilities; NOW THEREFORE, in consideration of the mulual promises made herein, the Marina Lessee, the City and the Agency, agree as follows: Article 1 - Definitions Section 1.1. Meaning of Words and Terms, The following words and terms as used in this Agreement shall have the following meanings: 1.1.1. "Ancillary Facilities" shall mean bathroom, laundry, storage and office facililies, and other facilities associated with the Marina, that are located in or adjacent to any of the Parking Facilities. 1.1.2, "Baywalk" means the public walkway along Biscayne Bay, which runs from the north end of the Marina to the south end of Ihe Marina, and such term shall include, for the purposes of this Agreement, the one hundred and fifty foot pedestrian and vehicular access easement immediately north of the Core Parcel (described in Exhibit "F" hereto) which connects the Baywalk to Alton Road. 1.1.3. "Business Day" means a day other than Saturday, Sunday or a day on which banking institutions in the State of Florida are authorized or obligated by law or executive order to be closed and are, in fact, closed. 1.1.4. "Commencement Date" shall mean the date of this Agreement as set forth in the first paragraph hereof, F.\ATTO'ILEVl\MAAINA\MARPAR....~ "I'd NOHmb<:r 1M, 1'1'!'I(7:~JPl>t) 2 , , 1.1.5. "Environmental Laws" shall have Ihe meaning ascribed thereto in Section 2.22 of the First Amendment to the Marina Lease. 1.1.6. "Fiscal Year" shall mean the twelve (12) month period commencing on January 1 of any year and ending on December 31 of the same year. 1.1.7. "Gross Receipts" shall have the meaning ascribed thereto in Section 1 of Article III of the Marina Lease, as amended by Section 28.6 of the First Amendment. 1.1.8. "Parking Facilities" shall mean any and all facilities, bolh temporary and permanent, including garages and surface lots, which may be located on SSDI North, SSDI South, Goodman Terrace, the Alaska Parcel and/or the Hinson Parcel, and which are included pursuant to this Agreement, the Fourth Amendment to the Marina Lease and the Settlement Agreement, and which shall be made available to the City and/or Ihe Agency pursuant to leases, licenses or other legal arrangemenls for parking for the Marina. 1.1.9. "Permitted Users" shall mean Marina Lessee and its successors and assigns, and those employees, agents, guests, licensees and invitees of Marina Lessee, its successors and assigns, and its subtenants, who are permitted by Marina Lessee and its subtenants to use the Parking Facilities. 1.1.10, "Requirements" means any and all Federal, state or local laws, rules, regulations, constitutions, orders, ordinances, charters, statutes, codes, and executive orders applicable to the Parking Facilities, including, without limitation, any of the foregoing relating to handicapped access or parking, Ihe Building Code of the City and the laws, rules, regulations, orders, ordinances. statutes, codes and requirements of any applicable Fire Rating Bureau or other body exercising similar functions, and any temporary and/or permanent certificate or certificates of occupancy issued for the Parking Facilities, and any and all provisions and requirements of any property, casualty or other insurance policy required to be carried by Marina Lessee under the Marina Lease. 1.1.11. "Term" shall mean the term of the Marina Lease, including any extensions thereof. Article 2 - Parking Facilities Section 2,1, Parking Facilities, In accordance with the Marina Lease, the Cily and the Agency shall at all times provide the Marina Lessee with not less than seven hundred and fifteen (715) parking spaces for use by the Marina Lessee in conjunction with the operation of the Marina. One hundred and fifteen of such parking spaces shall be surface parking located on the Core Parcel and one hundred and fifteen of such parking spaces shall be located in the building known as the Yacht Club, located on the northern portion of SSDI South (the legal description of which is set forth in Exhibit G hereto), as soon as such building is completed and the parking spaces therein are made available to the City. The remaining four hundred and eighty-five parking spaces shall eventually be located in two buildings to be conslructed on the SSDI North parcel and one building F.\A lTOILEVl..IMARI:-lAIMARP ARK~. "pd No',,~_, 1~. 1\l'\l~17.nPM) 3 \ , to be located on the southern portion of SSDI South, as more fully set forth in Ihe Settlement Agreement. Until such time as the aforesaid three buildings are constructed, temporary parking spaces shall be made available to the Marina Lessee on the SSDI North parcel, on the southern portion of the SSDI South parcel, the Goodman Terrace parcel, the Hinson parcel and/or the Alaska parcel, as provided in the Settlement Agreement (Ihe "Temporary Parking"). In the event that any of the Temporary Parking, or any portion thereof, is located on any parcel other than SSDI North, the City shall prepare such parcel and shall deliver the same to the Marina Lessee in accordance with the terms of the Marina Lease and the Settlement Agreement. All Temporary Parking shall be provided to the Marina Lessee in full compliance with the City's zoning code and all other City ordinances and regulations applicable therelo. Article 3 - Management of the Parking Facilities and Ancillary Facilities Section 3.1. Management. Subject to and upon the lerms and conditions set forth herein, the Marina Lessee shall manage and operate the Parking Facilities in accordance with the first-class standards established for the Marina ilself in the Marina Lease, and in an efficienl manner, consistent with the standards of quality set forth herein. Section 3,2. following: 3.2.1, 3.2.2 3.2.3 3.2.4 3.2,5 32.6 FIATIOIlEVLlMARINA\MARPAR).;S "pd NOH'ubc. l~_ 1~)OlI~ ~_lPM) Duties, The Marina Lessee's duties shall include, but not be limited to, the Hiring, training and supervising all personnel employed for the operation of the Parking Facilities; Purchasing the supplies and housekeeping equipment needed to operate, clean and maintain the Parking Facilities and Ancillary Facilities, including, but not limited to, spare parts for parking control equipmenl; Maintaining revenue and other such accounting records reasonably required by the City and the Agency, but only in the event that the Marina Lessee charges the Permitted Users for parking in the Parking Facilities; Informing the City and the Agency of the need for major repairs and replacements to the Parking Facilities and Ancillary Facilities, their operating equipment, fixtures and furnishings; Preparing and submitting to the City and the Agency within five (5) Business Days a report on each occurrence of damage claims and/or personal injury claims arising in connection with the operation of the Parking Facilities and Ancillary Facilities; Upon written request by Ihe City and/or the Agency, negotiating for the repair, replacement or maintenance of the Parking Facilities and Ancillary Facilities, its operating equipment, fixtures and furnishings generally, at the sole option of the City; and 4 , , 3.27 Performing routine cleaning and maintenance of the Parking Facilities and Ancillary Facilities as may be necessary in order to conform to the quality standards set forth in Article 4 hereof. Section 3,3, Baywalk. Marina Lessee shall maintain the Baywalk in accordance with the standards for the Marina as set forth in the Marina Lease and shall carry the same insurance with respect to Ihe Baywalk as is set forth for the rest of the Marina in the Marina Lease. Section 3.4. Security, Marina Lessee, at its sole cost and expense, shall be responsible for providing security or patrol services for the Parking Facilities and Ancillary Facilities. Such security shall be comparable to the security at similar Parking Facilities in the Miami-Dade County area. The Marina Lessee may provide such security itself, or may subcontract such security. The Marina Lessee shall be required to indemnify the City and the Agency for any loss, liability or expense arising from its failure to comply with the provisions of this Section 3.4, unless such loss, liability or expense is covered by insurance carried or required to be carried by the Marina Lessee pursuant to Article 10 hereof. Notwithstanding Ihe foregoing, the City shall provide the usual and customary police and fire services to the Marina, to the same extent that it provides such services 10 all property and Persons in the City. Section 3.5. Independent Contractors, Nothing herein shall be construed to prevenl the Marina Lessee from engaging independent contractors to perform any of the duties required of it pursuant to this Article 3, provided that (a) any duty so delegated shall be performed in accordance with Ihe standards set forth in this Agreement, (b) such independent contractors shall be adequately insured in accordance with standards in their respective industries, (c) neither the City nor the Agency shall have any liability to such independent contractors, and (d) such independent contractors shall have no lien rights against the City or the Agency. Article 4 - Maintenance and Operation of Parking Facilities Section 4.1, Maintenance Standards. Marina Lessee shall, at its own cost and expense, take good care of, and keep and maintain, the Parking Facilities in good and safe order and condition, and shall perform all routine maintenance necessary to keep the Parking Facilities in good and safe order and condition, all substantially in accordance with the standards set forth in the Parking Garage Maintenance Manual (August 1996), published by the National Parking Association/Parking Consultants Council (a copy of which is attached hereto as Exhibit "I"), as Ihe same may be revised from time to time. 4,1,1 Tenant shall not commit, and shall use all reasonable efforts to prevent, waste, damage or injury to the Parking Facilities, 4,1,2 All repairs made by Tenant shall be substantially equal in quality and class to the original quality of the improvements being repaired and shall be made in compliance with the Requirements, 4,1,3 Cleaning of Parking Facilities. Tenant shall keep clean and free from dirt, mud, rubbish, obstructions and physical encumbrances all areas of the Parking Facilities, F \_~ lTOILE\iL\MARIN^\MARP"'R~_\ \If'll ~'''."'btr\~. I'!'/<' (7 HPMl 5 .' The duty to perform all routine maintenance under this Seclion shall also include payment for water and telephones necessary for such Parking Facililies. and shall include maintenance of any revenue and/or security control equipment and systems used in connection with such Parking Facilities. The Marina Lessee shall also be responsible for maintenance and upkeep of the adjoining baywalk and baywalk landscaping. Notwithstanding anything to the contrary contained herein, Marina Lessee agrees that in the evenl that any of the Parking Facilities have painted walls, ceilings, columns or floors when they are initially made available to Marina Lessee for its use in connection with the operation of the Marina, Marina Lessee shall bear the cost of repainting the same when necessary. Section 4.2. City and/or Agency Obligations. The City and/or the Agency shall, in accordance with Section 3.4 of the Fourth Amendment. be responsible for the initial capital cost of the Parking Facilities, the electric ulility costs of the garage spaces, real eslate taxes, including special assessment or other similar charges (if any), and any "pass through" fees or costs or insurance imposed by the West Side entities or their successors. Section 4.3, Inspections. The City and the Agency shall have the same inspection rights with respect to the books, records, operations and activities of Marina Lessee and its officers and employees in connection with the operalion and maintenance of the Parking Facilities and the performance of the Marina Lessee under this Agreement that it has under Article XVI of Ihe Marina Lease, Section 4.4. 4.4. 4.4.1. 4.4.2, F.\.4. lTOIlEvt.\MARINA\MARP ARIo.:~. I'pd r-;o,en,bcr 1M, 1''''')17 ~:lPMJ Signs, All signs on the Parking Facilities shall be in conformance with this Section The Marina Lessee shall be permitted to display reasonable signage with its name and/or corporate logo identifying it as the operator of the Parking Facilities (including at the entrance to the Parking Facilities). All such signs shall be subject to the prior written approval of the City and the Agency in its reasonable discretion prior to being attached or affixed to Ihe Parking Facilities, and all such signs shall be in conformance with all applicable building, zoning and other applicable government regulations. Except as provided in Section 4.4.1, the Marina Lessee shall not erect or display, or permit to be erected or displayed any exterior sign, poster, billboard or advertising matter or structure of any kind on the Parking Facilities premises without first obtaining the written consent of the City and the Agency. Any sign, poster or other materials, if permitted by the City and Ihe Agency, shall be at the sole cost and expense of the Marina Lessee, and any such sign, poster or other material installed shall thereupon become property of the City and/or the Agency, except signage with the Marina Lessee's name and/or logo. The Marina Lessee shall remove any sign, poster or other material inslalled by il at its own cost and expense when directed by the City in writing. The Marina Lessee shall, at the City's and/or the Agency's cost, install such other signs as are requested and approved by the City and/or the Agency to designate appropriately the parking areas and their entrances and exits as well as for other purposes. 6 " . , Article 5 . Parking Control Equipment. Section 5,1. Marina Lessee to Provide Equipment. The Marina Lessee, at its sole cost and expense shall furnish all operating parking equipmenl which shall be used in the operation of the Parking Facilities, In the event that the Marina Lessee determines that there shall be a charge for use of the Parking Facilities, as permitted by Section 3.4 of the Fourth Amendment 10 the Marina Lease, the Marina Lessee shall have the right at any time to install any revenue control equipment it desires, including, but not limited to, cash registers and parking validation equipment, and the Marina Lessee shall train its personnel to use such equipment and shall incorporate such equipment into its operation of the Parking Facilities. Section 5,2, Repair and Replacement, The City and the Agency shall conduct an inspection of the physical structure of the Parking Facilities, at least annually and the City and the Agency shall be responsible for enforcing its leases with the West Side entities, and Iheir successors and assigns wilh regard to the performance of any major structural repairs that the West Side entities are required to perform under the leases of the Parking Facilities between the City, the Agency and said entities. Notwithstanding the foregoing, the Marina Lessee shall be responsible for repairing or replacing any equipment or portions of the Parking Facilities that are damaged or destroyed as a result of the Marina Lessee's negligence, unless such damage is covered by insurance carried or required to be carried by the Marina Lessee pursuant to Article 10 hereof. Article 6 . Parking Charges. Section 6.1. Establishment of Parking Charges, In the event that the Marina Lessee decides, in its sole discretion, to charge for parking in the Parking Facilities, or any of Ihem, the Marina Lessee shall have the sole discretion 10 establish Ihe amount of such charges. In such event, the City or the Agency, as they may direct, shall receive Ihirty-five percent (35%) of the Gross Receipls generated by the Parking Facilities, which amount shall be payable to the City or the Agency, as the case may be, in the same manner and at the same time as is specified for Annual Percentage Rent (as such term is defined in the Marina Lease), in Article II, Section 3 of the Marina Lease. Notwithstanding anything to the contrary contained in Article VI, Section 1 of the Marina Lease, as amended by Section 28.9 of the First Amendment, the Gross Receipts generated by the Parking Facilities shall constitute a fourth category of Gross Receipts for which a separate Annual Percentage Rent rate is established under the Marina Lease. Article 7 . Employees. Section 7.1. Personnel. Except as provided in Section 3.5, all Parking Facilities employees shall be employees of Marina Lessee, and shall be trained, hired, instructed, supervised and directed by Marina Lessee. The Marina Lessee shall use commercially reasonable efforts to employ, engage and retain only persons and independent contractors who are competent, efficient, qualified and honest of reputation. Section 7.2. No Discrimination in Employment. Marina Lessee agrees that it will not discriminate upon the basis of race, creed, color, national origin or sex in the hiring of any Parking Facilities employees hereunder. FIArrl)\LEVLIMARINA\MARI'ARK.' wpd No\'tmb<:.IM.I'!'N(7;2.1PMl 7 " i, Section 7,3, Compliance with Laws and Regulations. Marina Lessee shall comply in all respect with all applicable laws and regulations relating to its employment of Parking Facilities employees including, without limitation, immigration and naturalization laws, worker's compensation laws, and laws regulating wages, hours and working conditions. Section 7.4, Conduct of Employees. Parking Facilities employees shall at all times conduct themselves in a courteous manner, have the ability to communicate with the public, be neat, clean and properly uniformed, and conduct themselves in a manner consistent with the first'class operation of the Marina. Article 8 - Labor Matters Section 8,1, Marina Lessee Responsible for Labor Relations. It is understood Ihat the Marina Lessee is solely responsible for its labor relations. Section 8,2. Unions. Marina Lessee shall, for its own account, conduct all negotiations relating to any union purporting to represent Parking Facilities employees, and neither the City nor the Agency shall be a party to or liable under any collective bargaining or similar agreement. Article 9 - Books of Account Section 9,1. Accounting. In the event that Marina Lessee determines that there shall be a charge for parking in the Parking Facilities, the Marina Lessee shall keep such books of account and records with respect to the Parking Facilities as are required pursuant to Article IV, Seclion 1 of the Marina Lease with regard to the rest of the Marina. In addition, if reasonably required by the City or the Agency based on the type of parking operalion that is conducted by the Marina Lessee, such books and records shall include individual parking tickets and receipts, consecutively numbered, dated and time stamped for each vehicle parked at the Parking Facilities as well as all such books, records and reports required to be maintained by any governmenlal authority. All such books and records shall be available for inspection by Ihe City and the Agency in the manner and at the times provided in the Marina Lease. Section 9,2, Annual Report; Audit. In the event that Marina Lessee determines that Ihere shall be a charge for parking in the Parking Facilities, Marina Lessee, on or before the fifteenth (151h) day of April following the close of each Lease Year (as defined in the Marina Lease), shall deliver an annual statement of the Gross Receipts derived from the Parking Facilities, prepared in accordance with Article IV, Section 2 of the Marina Lease. The City and Ihe Agency shall have the same audit rights with respect to the Gross Receipts of the Parking Facilities that are provided in Article IV, Section 3 of the Marina Lease. Section 9,3, Interest on Amounts Due; Shortages, Any amounts not paid to Ihe City or the Agency pursuant 10 any provision hereof shall bear interest as provided in Section 3 of Article II of the Marina Lease. Article 10, -Insurance and Claims, Section 10.1. Liability Insurance. With regard to the Parking Facilities, the Ancillary Facilities and the Baywalk, at all times during the Term Marina Lessee shall, at its sole cost and expense, F\ArrO\LEVL~\tARINA\MARPARtd "pd No,.mbcrIK.l'J9'lt7HPM\ 8 .. , , carry the types and amounts of insurance required to be carried by it under the Marina Lease, and pursuant 10 law, At such time as Ihe Marina Lessee, in its sole discrelion, decides to charge for parking on a daily or other short.te -m basis, and staff any of the Parking Facilities, in addition to the insurance that Marina Lessee is required to carry pursuant to Ihe Marina Lease, Marina Lessee shall, provided that such insurance is available at commercially reasonable rates, carry or cause 10 be carried, at all times during the Term, wilh respect to such Parking Facilities, Garagekeeper's legal liability coverage in an amount not less than Five Million Dollars (S5,000,000), subject to adjustment for inflation, per occurrence, with a deductible determined by the Marina Lessee, but not more than Ten Thousand Dollars ($10,000) per loss, subject to adjustment for inflation, The City and the Agency shall be additional named insureds, in accordance with Article XVII of the Marina Lease, on all insurance policies required hereunder. Marina Lessee shall provide the City with certificates of insurance at the limes required by Article XVII of the Marina Lease, Such Garagekeeper's legal liability coverage may be provided, in whole or in part, under any umbrella policy carried by the Marina Lessee, Section 10.2. Indemnification, Marina Lessee shall indemnify and hold City and the Agency harmless from and against any and all loss, claim, cost, damage, liability and expense (including reasonable attorney's fees), based upon the failure by Marina Lessee to carry or olherwise provide for any of the insurance required pursuant to the Marina Lease, as provided in Article XXIII of the Marina Lease, Section 10,3. Unrelated Valet Operators. In Ihe event that the Marina or any business located in the Marina uses valet parking services thai are business entities other Ihan the Marina Lessee, the Marina Lessee shall require that such valet services name the City, the Agency and Marina Lessee as named insureds on their insurance policies with regard to their valet parking operations at the Marina, Article 11 - Term. Section 11.1. Term. The Term of this Agreement shall be co-terminus with the Marina Lease, including any extensions thereof, Article 12 - Default. Section 12.1, Events of Default and Remedies; Termination. It is the inlent of the parties that the events of defaults and remedies available therefor under the Marina Lease shall be fully applicable to this Agreement, and the same are incorporated herein as though fully set forth in Ihis Section 12,1, This Agreement may be terminated by either party only upon the terms and conditions on which the Marina Lease may be terminated, it being the intent of the parties hereto that this Agreement shall be co-extensive and coterminous with the Marina Lease, Article 13 - Independent Contractor; Subordination, Section 13,1, Independent Contractor; Agreement Subordinate, This Agreement is an agreement for the provision of personal services and does not create, directly or indirectly on the part of Marina Lessee, any interest in or to the Parking Facilities or any interest in real property, The parties acknowledge that Marina Lessee is, for the purposes of this Agreement, an independent contractor and not the agent, employee or partner of City or the Agency, Nothing in this Agreement shall constitute or be construed 10 be or create a partnership or joint venture, or be f',\rrO\LE\1.\MAJUNA\M"'IlP"'RK~ "P<l N,,"onlbc'iK.I'/9'J(1'1.1PM) 9 " construed to create a lease, license or concession. This Agreement is subject and subordinate to all underlying leases which may now or at any time hereafter affect the Parking Facilities Marina Lessee shall not take any action which would violate any provision of any such leases Article 14 - Environmental Indemnity. Section 14.1, Environmental Indemnity. The provisions of Section 2,22 of the First Amendment shall apply to the Parking Facilities, and such provisions are incorporated by reference as though fully set forth herein. Section 14.2. Survival. The provisions of this Article 14 shall survive the termination of this Agreement. Article 15 - Notices, Consent, etc, Section 15.1. Notices Between Parties. All notices, requests, demands and other communications between the parties hereto must be in writing and shall be deemed to have been duly given if delivered by hand, sent by overnight delivery service, or mailed by first.class certified mail, return receipt requested, postage and fees prepaid and addressed as follows: If to the City: City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: City Manager With a copy to: City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 If to the Agency: Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 Attention: Executive Director With a copy to: General Counsel Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 If to Marina Lessee: Miami Beach Marina Associales, Ltd, F;\A TIO\LEVLIMARINA\}.tA,RP."RK.I, "JX1 No_ember IK. 1'~'l'J(7;1JPM) 10 " , , Miami Beach Marina 300 Alton Road Miami Beach, FL 33139 Attn: Robert W. Christoph With copy to: Carter McDowell, Esquire Bilzin Sum berg Dunn & Axelrod LLP 2500 First Union Financial Center Miami, Florida 33131 Section 15.2. Change of Address. Any party herefo may change its address for notices by notifying all other parties listed in this Article 15 of its new address in writing and delivered by hand, sent by overnight delivery service, or mailed by first-class certified mail, return receipt requested, postage and fees prepaid to their last addresses hereunder. Article 16 - Limitation of Liability; No Conflict of Interest. Section 16.1. Limitation of Liability, Marina Lessee agrees that the covenants and obligations contained in this Agreement on the part of the City and/or the Agency, as the case may be, shall be covenants and obligations of the City and/or the Agency, as the case may be, only and not of any member, official or employee of the City and/or the Agency, as Ihe case may be, individually. No member, official or employee of the City and/or the Agency, as the case may be, shall be individually liable for breach of any covenant or obligation of the City and/or the Agency, as the case may be, and no recourse shall be had against the assets of any member, official or employee of the City and/or the Agency, as the case may be, for payment of any services due, or enforcement of any other relief, based upon any claim made by Marina Lessee for breach of any such covenant or obligation. Section 16,2. No Conflict of Interest. Marina Lessee represents and warrants that, to the best of its actual knowledge, no member, official or employee of the City and/or the Agency, has any direct or indirect financial interest in this Agreement, nor has participated in any decision relating to this Agreement that is prohibited by law. Marina Lessee represents and warrants that, to the best of its knowledge, no official, agent, employee or representative of the City or the Agency, has received any payment or other consideration for the making of this Agreement, directly or indirectly from the Marina Lessee. Marina Lessee represents and warrants that it has nol paid or given, and will not payor give, any third person any money or other consideration for obtaining this Agreement, other than the normal costs of conducting business and costs of professional services, such as attorneys, Marina Lessee acknowledges that the City and the Agency are relying upon the foregoing representations and warranties in entering into this Agreement and would not enter into this Agreement absent the same. Article 17 - Assignment; Subcontracts; No Liens or Encumbrances, Section 17.1, No Assignment of Agreement; No Subcontracts. All of the terms of this Agreement shall be binding upon the respective successors and assigns of the parties hereto and shall inure to the benefit of and be enforceable by the parties hereto and their respeclive successors and assigns; provided, however, that Marina Lessee shall not assign this Agreement or any of its rights or obligations hereunder unless in each case it obtains the prior written consent FIA TTOILEVL\MARINA\MARP ARK~. wpd No,-embcrIW.19<N11:!.\I'M) 11 ',' of the City, in accordance with the Marina Lease This Agreement shall not be transferred or assigned unless the Marina Lease is transferred or assigned, and then only to a person or legal entity to whom the Marina Lease is transferred or assigned Section 17.2. No Liens or Encumbrances. Nothing contained herein shall create any right for the Marina Lessee to place liens against or otherwise encumber any of the Parking Facilities. In the evenl that any such liens or encumbrances are placed against the Parking Facilities, Marina Lessee shall cause the same to be removed or bonded off as soon as reasonably possible, but in no event more than ten (10) days after receipt of the written demand of the City or the Agency to remove such liens or encumbrances, and failure to do so shall constitute a default hereunder, as more particularly described in the Marina Lease. Article 18 - Miscellaneous. Section 18,1. Successors and Assigns, The rights and liabilities created by this Agreement shall extend to and bind the Marina Lessee the City, the Agency and each of their successors and assigns. Section 18.2, Governing Law. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. Section 18.3. Severability, If any provision of this Agreement or the application thereof to either party hereto or circumstance is, to any extent, finally determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement, and the application of such provision to either party hereto or circumstance other than those to which it is held invalid and unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Section 18,4. Recording in Public Records. Marina Lessee shall not record this Agreement or any memorandum hereof in the public records without the prior written consent of the fee owners of all of the lands upon which the Parking Facilities are, or may be, located Section 18.5. No Continuing Waiver, Waiver of any breach of any of the provisions hereof shall not be deemed a waiver of any other provisions hereof and such provisions shall remain in full force and effect. Section 18.6. Table of Contents and Headings, The table of contents and headings of this Agreement are for purposes of convenience of reference only and shall not limit or otherwise affect the meaning of any of the terms hereof Section 18.7. No Waiver of Police or Governmental Power. Nothing in this Agreement or in any parties' acts or omissions in connection herewith shall be deemed in any manner to waive, impair, limit or otherwise affect the authority of the City or the Agency in the discharge of their respective police or governmental power. F.\AlTO\LEYl\MARrNA~IARPAR""~ "1'<1 No,..","'" I~. 1'1'1'1(7 !.\PMl 12 .' , . Section 18,8, Time of Essence. Time is of the essence in the performance of the Marina Lessee's duties and obligations under this Agreement. Section 18,9. Interpretation, The words "hereof." "hereto," "hereunder," and similar expressions used in this Agreement relate to the whole of this Agreement and not only to the provisions in which such expressions appear. This Agreement shall be read with all changes in number and gender as may be appropriate or required by the context. Any reference to the Marina Lessee includes, when the context allows, the employees. agents and licensees of the Marina Lessee, and all other over whom the Marina Lessee might reasonably be expected to exercise control. This Agreement has been fully reviewed and negotiated by each party hereto and its legal counsel and shall not be more strictly construed against either party. Section 18.10, Entire Agreement; No Amendments. This Agreement embodies the entire agreement and understanding between the City and Marina Lessee, with regard to the subject matter hereof, and supersedes all prior agreements and understandings relating to the subject matter hereof, and there are no other agreements or understandings between them. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in writing. signed by the party against whom such amendment. modification. waiver or discharge is sought to be enforced. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. City of Miami Beach By: ~PI Neisen O. Kasdin Mayor [SEAL] Attest: ~GttPa.1C~' Robert Parcher City Clerk APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION I!/ I-lutUtL City of Miami Beach I \ - 1- ~:1J Date F \ATIOIlEVLIMARI:-;....\MARP-\RK.< "Jld No,'cml><:r 1M, I'N~(J':)PM) 13 ',' " , STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) A fki!;' 'U'VV The foregoing instrument was acknowledged before me this~ day of ,./ ,~ by Neisen O. Kasdin as Mayor of The City of Miami Beach, a municipal corporation f the State of Florida. He personally appeared before me, is personally known to me or produced as idcfltifiE:3tion, [NOTARIAL SEAL] 91:i~ Notary: , 1 Print Name '7(; ~~Z;; Notary Public, State of r My commission expires: OH1ClAl. N<Jf ARY SEAL ULLIAN BEAUCHAMP NOTARY PIlBUC STATE OF FLORIDA COMMISSION NO. CClJR1n MYC'OMMl%ION EX 1'. ^PR. ~4.2i'1~ :,m; Bt/1.d.",opm,", "'"'Y Neisen O. Kasdin Chairman [SEAL] Attest: P{l~~l t Pat (~'--- Robert Parcher Secretary APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION 1~ ~Jl-:- Miami Beach Redevelopment Agency u' )- 2,-'Y Date FIAITOILEYl\MARINAIMARPARi'o:.5 "pd N"...mbe'IK. 1'1~9(7.1JPM) 14 STATE OF FLORIDA ',' ) SS COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this ..3i!'Jay of fd.tjthr. ~ by Neisen O. Kasdin as Chairman of The Miami Beach Redevelopment City, a public agency organized and existing pursuant to the Community Redevelopment Act of 1969, as amended, Chapter 163, Part III Florida Statutes. He personally appeared before me, is personally known to llliLor prod' l\:eG as identification. - [NOTARIAL SEAL] OFFlOAL NarARY SEAL ULLlAN BEAUCHAMP NarARY PUBUC Sf ATE OF ~WRIDA COMMISSION NO. CC738.172 MY COMMISSION EXP. APR. 29.2002 1 [SEAL] Attest: o&/~<le 2- F\A rtOlLEVL\MAR lNA\MARP ARK~. "pd N"'.cmbe,]K.I<)OI'I(7:2.1PM) Notary /:+{ it. ~ /i~~hr;t;; Print Name: 'j ;- . OUr I--t~ Notary Public, State of P'tnr/c/ v--> My commission expires: . MIAMI BEACH MARINA ASSOCIATES, LTD., a Florida limited partnership By: Sa Be Marine, Inc., a Florida corporation, general partner By: 15 STATE OF FLORIDA ) SS: COUNTY OF MIAMI-DADE ) ',' :J.OUG The foregoing instrument was acknowledged before me this :Al\'(J(.day ofJl1 AJ.. ,r:goo by Robert W. Christoph as President of SoBe Marine, Inc., a Florida corporation, which is the general partner of Miami Beach Marina Associates, Ltd, a Florida limited partnership, on behalf of the corporation and the partnership. He!. personally appeared before me, ~s personally known 10 me or produced as idenlification. [NOTARIAL SEAL] ~"'\"~"""" Rhoda Rubin t.f'll'~. ,~ MY COMMISSION' CC717195 EllJlIRES ;,,;, ip.' February 17, 2002 "-t"-'>L<,.' 'Ol<llOlH,"TJI()"A~I~1NC onr..{i\ F. \A TTO\LE\;l.\MARINA~\IARP ARK' "pel No,.c,nbc.1K.l",J9(7.21P:l.ll Notary: Pl~1 C<. ~LLl\..A-"" Print Name: . , 00 A- f<!.J B I f\J Notary Public, State of r- \..-c R 1t?A- My commission expires: :2 - ,-/.. CJ.., 16 EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I F;\A rrOllE\'L\MARJS.'~\lARP ARK~. wP<l N(ll,'e....,. IS. 19'J9(7:2.1P\1l ',' LIST OF EXHIBITS LEGAL DESCRIPTION OF SSDI SOUTH PARCEL LEGAL DESCRIPTION OF SSDI NORTH PARCEL LEGAL DESCRIPTION OF THE GOODMAN PARCEL LEGAL DESCRIPTION OF THE ALASKA PARCEL LEGAL DESCRIPTION OF THE HINSON PARCEL LEGAL DESCRIPTION OF THE CORE PARCEL LEGAL DESCRIPTION OF THE YACHT CLUB PARCEL COPY OF PORTOFINO SETTLEMENT AGREEMENT PARKING GARAGE MAINTENANCE MANUAL (AUGUST 1996) 17 F.IATTO\LEvt.\MARINAIMARPARIO \\pI No,-ombtr 18. 1'l'N(7:HPM\ ',. EXHIBIT A LEGAL DESCRIPTION OF SSDI SOUTH PARCEL F .\A TTOILEVLWARINAWARPARK', wpd N",'emt><:.IR,I'1'N(7.2lPM\ ',- , , EXHIBIT B LEGAL DESCRIPTION OF SSDI NORTH PARCEL F .\A liOlLEVLIMAA1NAIMARP ARK'. wpd Nl>\embc. IK. I.....W l'HPM\ '. . . EXHIBIT C LEGAL DESCRIPTION OF THE GOODMAN PARCEL F IAITOILEVL\MARJNAIMARPAAK5 wpd N"'.cmbc:rIK_1999(1:2JP~1 ., , , EXHIBIT D LEGAL DESCRIPTION OF THE ALASKA PARCEL f. IA TTO\LEVL\MARINA\MARP AR"~. "pi NOnlIlbc, l~. 1~{7:nPM) EXHIBIT E LEGAL DESCRIPTION OF THE HINSON PARCEL , ! " . . f:\A TTO\LEVL\MAfUN"'IMARP"'RK~...pd Nov~mbc'IW, 1?99(71_\PM) , J , , EXHIBIT F LEGAL DESCRIPTION OF THE CORE PARCEL f:\A lTOILEVLIMARISAIMARP ARK5." pd No\'emb"IB. lmP~;~1} , {( " . , EXHIBIT G LEGAL DESCRIPTION OF THE YACHT CLUB PARCEL FIA TTO\1..fVl.\MARINAIMARPAAK~, ..'pd N""cmMrl'.I9'J'J(7:1lPMl ,~ -.( .~ , , EXHIBIT H COPY OF PORTOFINO SETTLEMENT AGREEMENT , . . EXHIBIT I Parking Garage Maintenance Manua/ (August 1996), published by the National Parking Association/Parking Consultants Council FIA TTOO.Evt.\MARINAIMAlU'A.RK'. "'pel NO\cmberll,I'Mlt':2lPM) ... '-";- '~ . . ,