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HomeMy WebLinkAboutR-02-0622J-02--129 5/17/02 RESOLUTION NO. O 2 6 2 2 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT (S) AUTHORIZING THE CITY MANAGER TO EXECUTE THE FIRST AMENDMENT TO THE VALET PARKING CONCESSION AGREEMENT BETWEEN BAYFRONT PARK MANAGEMENT TRUST AND BAYFRONT VALET, L.C., IN SUBSTANTIALLY THE ATTACHED FORM, TO AMEND PROVISIONS RELATING TO PAYMENT, AND ADD AN ADDITIONAL REQUIREMENT OF A GUARANTEE. WHEREAS, the Bayfront Park Management Trust ("Trust") has managed the Mildred and Claude Pepper Bayfront Park ("Bayfront Park") with the goal of ensuring maximum community involvement; and t; WHEREAS, the Trust and Bayfront Valet, L.C., entered into a Valet Parking Concession Agreement dated December 8, 1998 (the "Valet Parking Agreement"), for the operation of valet parking services at the Bayfront Park; and WHEREAS, the parties now wish to amend the Valet Parking CITY 00MUIROU NEET1 J U N 1 3 2002 iW160 hon No. j�,;2 Agreement to amend provisions related to payment and to add a provision requiring the guaranty attached as "Exhibit 1" to the First Amendment to the Valet Parking Concession Agreement which is attached hereto as "Exhibit A"; and WHEREAS, the Trust approved the First Amendment to the Valet Parking Agreement, in substantially the attached form, on January 29, 2002; and WHEREAS, the Executive Director of the Trust recommends approval of the First Amendment to the Valet Parking Agreement; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is authorized!' to execute the First Amendment to Valet Parking Concession Agreement, in substantially the attached form. 1� The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. Page 2 of 3 Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.2/ PASSED AND ADOPTED this 13th day of June , 2002. 11• A. DIAZ,YOR 41 ATTEST: P ISCILLA A. THOMPSON CITY CLERK APPROVED AS -TO FORM AND CORRECTNESS: �ZEI O VILARELLO Y TTORNEY TW5993Wdd z/ If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the mayor vetoes this Resolution, it shall not be effective unless the City Commission overrides the veto. Page 3 of 3 02- 622 "EXHIBIT A" FIRST AMENDMENT To VALET PARKING CONCESSION AGREEMENT Between CITY OF MIAMI BAYFRONT PARK MANAGEMENT TRUST And BAYFRONT VALET, L.C. Dated December 8, 1998 02- 622 FIRST AMENDMENT TO VALET PARKING CONCESSION AGREEMENT THIS FIRST AMENDMENT TO VALET PARKING CONCESSION AGREEMENT (hereinafter called the First Amendment), made and entered into this day of May, 2002, by and between Bayfront Park Management Trust, (hereinafter called the Trust) a limited agency and instrumentality of the City of Miami having an office at 301 North Biscayne Boulevard, Miami, Florida 33132, and Bayfront Valet, L.C., a Florida limited liability company (hereinafter called the Operator). WHEREAS, on December 8, 1998 the Trust and Operator entered into and executed that certain Valet Parking Concession Agreement (hereinafter called the Concession Agreement) for the operation of valet parking services on a portion of property known as Bayfront Park and owned by the City; and WHEREAS, the Trust and Operator wish to modify and amend certain sections of the Concession Agreement relating to the consideration paid by the Operator. NOW THEREFORE, BE IT RESOLVED that the Concession Agreement is hereby amended as follows: A. Section IV entitled "CONSIDERATION" is hereby deleted in its entirety and shall now read as follows: IV. CONSIDERATION The Operator shall pay to the City, in consideration for the concessions and privileges herein granted, an Annual License Fee of Ninety Thousand Dollars ($90,000.00). The Annual License Fee shall be payable in equal monthly payments of Seven Thousand Five Hundred Dollars ($7,500.00), each, with each such payment due and payable on the 8th day of every month during each year of the term of this Concession Agreement. Any payment not made on the date the same is due shall bear interest at the highest rate permitted by law from the date payment was due until payment is received by the Trust. Operator shall be responsible for and agrees to pay to the State of Florida promptly, when due, all taxes assessed against the Parking Facilities, the Annual License Fee and/or Operator's activities hereunder, including specifically, but without limiting the generality of the foregoing, sales or use taxes. B. Section XV entitled "RIGHT OF CANCELLATION" is hereby deleted in its entirety and shall now read as follows: (a) Cancellation by Either Party This Concession Agreement may be canceled by either party upon the occurrence of any one of the following events. Cancellation under this section shall be 445 PM val prkg clean 5-17 2 i� 0 2 622 effective not earlier than 30 days after written notice of election to cancel is given by either ply: (i) Default on the part of Bayfront Ventures under the Gaming Vessel Agreement described in Article 1 hereof. (ii) Any one of the following events that has a direct material adverse impact on the use of the Parking Facility and/or the provision of the Services: fire, explosion, action of the elements, strike or other labor disputes, restrictions or restraints imposed by law, rules or regulations of a public authority, acts of military authorities, war, riots, civil disturbances, interruptions or delays of utilities, and any other cause which is beyond the reasonable control of the Party affected. (iii) Illegality of possession of slot machines by Operator. (iv) Class III gaming, as defined by the Indian Gaming Regulatory Act, 25 U.S.C. §2701, becomes legal on Indian lands located within the jurisdictional boundaries of the State of Florida. (b) Early Termination Procedure: (1) Provided that User is not in default under the terms of the Amended Agreements, as defined in the Guaranty (hereinafter defined), User may at any time terminate this Concession Agreement by giving written notice of not less than twenty four (24) months (such period, the "Notice Period") to Trust of User's intent to terminate the Concession Agreement and vacate the Parking Facility. Notwithstanding User's termination of this Concession Agreement pursuant to this Section XV(b) User may, at User's sole option, continue to occupy the Parking Facility for a period (the "Post -Notification Use Period") not to exceed eighteen (18) months from User's written notification to Trust of its election to terminate, during which Post -Notification Use Period User shall continue to make monthly payments to Trust pursuant to the terms and conditions hereof, as such monthly payments come due, and shall continue to comply with all non -monetary obligations. (2) Upon User's vacating the Parking Facility after a termination pursuant to this Section XV(b) whether such vacating occurs (i) immediately, (ii) at some point prior to the running of the Post -Notification Use Period, or (iii) upon the running of the Post -Notification Use Period, then, throughout the remainder of the Notice Period, User shall continue to make monthly payments to Trust pursuant to the terms and conditions hereof, as such monthly payments come due, but shall have no other obligation hereunder, of any kind whatsoever, with respect to the Parking Facility, except that User shall complete repairs, replacement and/or maintenance of any portion of the Parking Facility commenced and not completed, or becoming due under the terms of this Concession Agreement, prior to User's vacating the Parking Facility. (3) In the event that User terminates this Concession Agreement pursuant to this Section XV(b), User's maximum liability to Trust under the terms of this Concession Agreement shall be an amount not greater than the sum of (i) all payments remaining due under this Concession 445 PM val prkg clean 5-17 02- 622 Agreement for the duration of the Notice Period; (ii) any accrued but unpaid sums owed by User to Trust with respect to payments already due; (iii) full compliance by User of all non -monetary obligations while User is in possession of the Parking Facility, and (iv) upon User's vacating the Parking Facility, the value of any repairs, replacements and/or maintenance to the Parking Facility commenced and not completed, or becoming due under the terms of this Concession Agreement, prior to User's vacating the Parking Facility. C. Section XXIII entitled "Notices" is hereby amended to provide notices to the following individuals and entities: TO OPERATOR: TO THE TRUST: 301 North Biscayne Boulevard Miami, Florida 33132 Attn: Timothy F. Schmand, Interim Executive Director With copies to: City Manager 444 S.W. 2nd Avenue Miami, Florida 33130 City Attorney 444 S.W. 2n Avenue Miami, Florida 33130 D. Attached hereto and incorporated by reference in this First Amendment is a Guaranty of same date executed by Concorde Gaming Corporation, a corporation existing under the laws of the State of Colorado in favor of the Trust and of the City of Miami, wherein Concorde Gaming Corporation guarantees the performance and payment obligations of Operator (the "Guaranty"). Upon the expiration or other termination of each of the Amended Agreements, as defined in the Guaranty, and the payment in full and performance in full of all Indebtedness (as defined in the Guaranty) of User to Trust, Trust shall sign a release." E. The amendments described in this First Amendment shall apply and take effect retroactively on October 1, 2001 and apply to the payments due and payable October 8, 2001. F. Except as specifically provided herein, all of the terms and provisions of the Concession Agreement shall remain in effect. IN WITNESS WHEREOF, the parties hereto have made and executed this Amendment: the Trust through its Board of Directors, signing by and through its Executive Director, authorized to execute same by Board action on the day of , and User, signing by and through its President, duly authorized to execute same. 445 PM val prkg clean 5-17 4 02-622 TRUST ATTEST: Bayfront Park Management Trust, limited agency and Instrumentality of the City of Miami, by and through its Board of Directors LM Timothy F. Schmand, Interim Director day of , 2002 USER Concorde Cruises, Inc., a South Dakota corporation, Authorized to do business in the State of Florida By: Jerry Baum, President SECRETARY this day of , 2002 Printed Name: WITNESSES: Printed Name: Printed Name: 445 PM val prkg clean 5-17 5 02- 622 APPROVAL OF THE CITY OF MIAMI Witnesses: Printed Name: Printed Name: ATTEST: By: Priscilla A. Thompson, City Clerk THE CITY OF MIAMI, A municipal corporation of the State of Florida, By: Carlos A. Gimenez, City Manager APPROVED AS TO INSURANCE APPROVED AS TO FORM AND REQUIREMENTS: CORRECTNESS: By: By: /7M Sue Weller, Alejandro Vilarello, City Attorney Acting Risk Management Administrator Department of General Services Administration 445 PM val prkg clean 5-17 02— 622 6 "EXHIBIT 1" GUARANTY FOR VALUABLE CONSIDERATION, Concorde Gaming Corporation, a Colorado corporation, ("Guarantor") hereby unconditionally guarantees to Bayfront Park Management Trust, a limited agency and instrumentality of the City of Miami ("Trust"), and to the City of Miami, a municipal corporation of the State of Florida ("City"), the full and prompt performance and full and prompt payment of any and all obligations and indebtedness, whether monetary or non -monetary in nature, of Concorde Cruises, Inc., successor by operation of law to Bayfront Ventures, a Florida general partnership (collectively referred to herein as "User"), under the Use Agreement dated June 25, 1997, as amended by the Amendment to Use Agreement dated September 26, 1997, the Second Amendment to Use Agreement dated , 2001, and the Third Amendment to Use Agreement dated , 2002 (collectively, the "Use Agreement"), and under the Valet Parking Concession Agreement dated December 8, 1998, as amended by the Amendment to Valet Parking Concession Agreement dated , 2002 (together, the "Parking Agreement", and collectively with the Use Agreement, as each may be further amended from time to time, the "Amended Agreements"). (Copies of the Amended Agreements are attached hereto as Exhibit A.). The word "Indebtedness" is used herein in its most comprehensive sense and includes any and all debts, obligations and liabilities of User to City and/or Trust arising from the Amended Agreements, whether heretofore, now, or hereafter made, incurred, or created, whether monetary or non -monetary in nature, and however arising, whether due or not, absolute or contingent, liquidated or nonliquidated, and whether User may be liable individually, or jointly with others, or whether recovery upon such Indebtedness may be or hereafter becomes barred by any statute of limitations, or whether such Indebtedness may be or hereafter becomes otherwise unenforceable, and is not limited as to amount or type, except that Guarantor's liability for monetary obligations shall be limited to an amount not greater than the sum of the monthly payments due under the Amended Agreements during a period of Twenty -Four (24) months and Guarantor's liability for non -monetary obligations shall be limited to those corresponding to the actual term of the Amended Agreements. In the event Guarantor elects to terminate the Amended Agreements pursuant to the Early Termination Procedure contained therein, Guarantor's monetary liability at any given time during the Notice Period (as defined in the Amended Agreements) shall be decreased by an amount equal to the total monies actually paid by Guarantor from the start of the Notice Period through such time. Guarantor's obligations under this Guaranty (the "Guaranty Obligations") are independent of the obligations of User. A separate action or actions may be brought and prosecuted against Guarantor, whether or not action is brought against User, and User may be joined in any such action or actions. This Guaranty is a guaranty of payment and not of collection. Guarantor acknowledges and agrees with Trust and City that each Indebtedness is a valid and binding obligation of User. Guarantor authorizes Trust and City, without notice to or demand upon Guarantor, from time to time, and on any number of occasions, to (a) 02- 622 renew, amend, compromise, extend, accelerate, reinstate, or otherwise change the time for payment of the Indebtedness or (b) otherwise change the terms of the Indebtedness or Guaranty Obligations. Guarantor waives any right to require Trust and City to (a) proceed against User; (b) proceed against or exhaust any security held from User; or (c) pursue any other remedy whatsoever available to Trust and City. Guarantor waives any defense arising by reason of any disability or other defense of User or by reason of the cessation from any cause whatsoever of User's liability. Guarantor waives any right to enforce any remedy that Trust or City now has or may hereafter have against User. Guarantor waives all presentments, demands for performance, notices of nonperformance, protests, notices of dishonor, and notices of acceptance of this Guaranty and of the existence, creation or incurrence of new or additional indebtedness and all other defenses to any action or proceeding to enforce this Guaranty, except the two defenses of actual payment and actual performance in accordance with the Amended Agreements. No delay on the part of Trust or of City in the exercise of any right, power or privilege under the terms of any documentation between (a) Trust and/or City and (b) User, or under this Guaranty, shall operate as a waiver of any such privilege, power or right. Upon default of User on any of its Indebtedness to Trust and City, or if User or Guarantor shall become insolvent or make an assignment for the benefit of creditors, or if a petition in bankruptcy or for corporate reorganization or for an arrangement be filed by or against User or Guarantor (and, in the case of an involuntary proceeding, not dismissed within sixty (60) days of its listing), or if there is the appointment of a receiver for User or Guarantor or for their property, or if a judgment is obtained or warrant of attachment issued against User or Guarantor, and the same is not bonded off within fifteen (15) days from entry thereof, then all of the Indebtedness, shall, without notice or demand, at the option of Trust and City, become immediately due and payable and shall be paid forthwith by Guarantor. Guarantor hereby submits to the jurisdiction of the state and federal courts in the State of Florida for purposes of any action arising from or growing out of this Guaranty, and further agrees that the venue of any such action shall be laid in Miami -Dade County. Guarantor acknowledges that the Trust and the City have been induced by this Guaranty to re -negotiate the terms of the Amended Agreements with User, and that Trust and City would not have agreed to such re -negotiation without this Guaranty. Guarantor acknowledges and agrees that this Guaranty shall remain in full force and effect until the expiration or other termination of each of the Amended Agreements, and until such time as all Indebtedness of User to Trust and City is paid and/or performed in full. Guarantor shall furnish to Trust and City, within ninety-five (95) days after the close of its fiscal year a copy of its Annual Report on Form 10-K containing the balance sheet of Mayl7Guaranty 02- 622 2 Guarantor as of the close of such fiscal year and statements of income, stockholder's equity and cash flows for the year then ended and the opinion thereon by Guarantor's independent public or certified public accountants. Financial statements of Guarantor must be prepared in accordance with generally accepted accounting principles. Each provision hereof is intended to be severable and the invalidity or illegality of any portion of this Guaranty shall not affect the validity or legality of the remainder hereof. GUARANTOR HEREBY VOLUNTARILY, KNOWINGLY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS GUARANTY OR CONCERNING THE INDEBTEDNESS AND/OR ANY COLLATERAL THEREFOR OR PERTAINING TO ANY TRANSACTION RELATED TO OR CONTEMPLATED THEREBY, REGARDLESS OF WHETHER SUCH ACTION OR PROCEEDING CONCERNS ANY CONTRACTUAL OR TORTIOUS OR OTHER CLAIM. Any notice or demand given or made under this Guaranty shall be given or made by mailing the same by registered or certified mail to the party to whom the notice or demand is given or made at the address of such party set forth below, or such other address as such party may hereafter designate by notice given as provided in this paragraph. The address for notices to Guarantor are: The addresses for notices to City and to Trust are: This Guaranty may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute but one instrument. IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the date set forth below the signature line, to be effective on the date of the Third Amendment to the Use Agreement and the Amendment to the Valet Parking Concession Agreement. Signed, sealed and delivered in the presence of: GUARANTOR: Mayl7Guaranty 02— 622 3 TO: Honorable Mayor and Members e City Commission r FROM: . i othy . Schmand Interim Director CA -10 DATE: May 28, 2002 SUBJECT: Resolution Authorizing the City Manager to execute the first Amendment to the Valet Parking Agreement between Bayfront Park Management Trust and Bayfront Valet L.C. RECOMMENDATION: It is respectfully recommended that the City Commission adopt the attached resolution authorizing the City Manager to execute the First Amendment to the Valet Parking Agreement between Bayfront Park Management Trust and Bayfront Valet L.C. in substantially the attached form to amend provisions relating to payment, and adding an additional requirement of a guarantee. BACKGROUND: The Bayfront Park Management Trust ("Trust") has managed the Mildred and Claude Pepper Bayfront Park ("Bayfront Park") with the goal of ensuring maximum community involvement. The Trust and Bayfront Valet, L.C., entered into a Valet Parking Concession Agreement dated December 8, 1998 (the "Valet Parking Agreement'), for the operation of valet parking services at the Bayfront Park. The parties now wish to amend the Valet Parking Agreement to amend provisions related to payment and to add a provision requiring the guaranty. The Trust approved the First Amendment to the Valet Parking Agreement, in substantially the attached form, on January 29, 2002. The Trust and the Interim Director of the Trust recommend approval of the First Amendment to the Valet Parking Agreement. FISCAL IMPACT This First Amendment to the Valet Parking Agreement decreases the concessionaire's payment to the Trust from $180,000 to $90,000 annually. TS/ts Page 1 of 2 02- 622