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Bayfront Park/Concorde Cruises (Casino Princesa) Transfer and Assignment
• New BPMT memo dated 4/27/04
• Unchanged memo to Mayor and Commissioners
• Revised Resolution — language regarding revocable license for surplus warehouse
space deleted because the value does not require Commission approval.
• Revised term sheet now includes language re: attorney fees (page 12) and is now
part of documents to be approved by Commission. Previously the term sheet was
only included as back-up material.
• Unchanged Amendment and Restatement
CLi
MILDRED AND CLAUDE PEPPER
BAYFRONT PARK
TO:
FROM:
SUBJECT:
DATE:
MEMORANDUM
Mayor and Members of the City Commissio
Timothy F. Schmand, Executive Director
Revised Resolution re: the transfer and assignment of the Casino Princesa
April 27, 2004
At this Thursday's, April 29, 2004, special City Commission meeting, the City
Commission will be considering the Bayfront Park Management Trust's approval of the
transfer and assignment of the use and valet parking concession agreements from
Concorde Cruises, Inc. ("Concorde") and Bayfront Valet, Inc. ("Bayfront Valet") to
Southeast Cruise Holdings, LLC.
Attached please find for your consideration a complete packet including: a cover memo, a
revised resolution with two attachments. The first attachment is a revised term sheet
delineating the amendments to the Use Agreement with Concorde. The second
attachment is the Amended and Restated Valet Parking and Concession Agreement,
which is the second amendment to the valet parking concession agreement with Bayfront
Valet. Bayfront Valet is Concorde's wholly owned subsidiary that operates the valet
parking concession adjacent to Bayfront Park.
Please contact me should you have any questions.
CC:
Joe Arriola, City Manager/City Administrator
Alejandro Vilarello, City Attorney
Priscilla A. Thompson, City Clerk
Maria Chiaro, Assistant City Attorney
Erica N. Wright, Assistant City Attorney
Victoria Guerrero, Assistant to the City Manager
Ana Medina, Legislative Services Supervisor, City Clerk's Office
Elvi Alonso, Agenda Coordinator, City Agenda Office
Angela Smith, Administrative Assistant II, City Attorney's Office
BAYFRONT PARK MANAGEMENT TRUST
301 North Biscayne Boulevard Miami, FL 33132 (305) 358-7550
TO: The Honorable Mayor and DATE: April 22, 2004
Members of the City Conunission
SUBJECT: A Resolution
of the Miami City
Commission, with
attachments, authorizing the
Bayfront Park Management
Trust to accept the transfer
and assignment of the
agreements with Bayfront
Park Management Trust from
Concorde Crises, Inc. to
Southeast Cruise Holdings,
LLC.
FROM:
Timothy F. Schmand
Executive Director
RECOMMENDATION
It is respectfully recommended that the City Commission adopt the attached Resolution authorizing
the Bayfront Park Management Trust to accept the transfer and assignment of the Agreements with
Bayfront Park Management Trust from Concorde Cruises, Inc. to Southeast Cruise Holdings, LLC
and authorizing the Executive Director of the Bayfront Park Management Trust to execute an
Amendment and Restatement to the Use Agreement executed June 25, 1997, an Amendment and
Restatement to the Valet Parking Concession Agreement dated December 8, 1998, and a Revocable
License Agreement with Southeast Cruise Holdings, LLC.
BACKGROUND
The Bayfront Park Management Trust (Trust) manages Bayfront and Bicentennial Parks. Two of the
Trust's objectives are to attract people to the parks and to continue generating revenue through the
use of park facilities. To that end, a use agreement was entered into on June 25, 1997, between the
Bayfront Park Management Trust and Concorde Cruises, Inc. for use of the north end dock adjacent
to Bayfront Park. On December 8, 1998, the Trust and Bayfront Valet, LLC (owned by Concorde
Cruises) entered into a valet parking concession agreement. Subsequently, a revocable license
agreement was also entered into for use of warehouse space. Recently, Concorde Cruises, Inc.,
negotiated an asset purchase agreement with Southeast Cruise Holdings, LLC (Southeast) for
acquisition of the vessel, the valet parking operation and the personal property related thereto. On
April 19, 2 004, t he T rust a pproved t he transfer and assignment o f the u se a greement and the
concession agreement and authorized the Executive Director to execute amendments and
restatements to these agreements, in substantially the attached form, with Southeast, subject to the
terms and conditions contained therein. The Trust also further authorized the Executive Director to
execute a revocable license agreement with Southeast for use of surplus warehouse space located at
the Park The Trust has determined that the acceptance of the assignment is in the best interest of the
parties and has conditioned its acceptance of the assignment and transfer and its authorization for the
Executive Director to execute the Amendments and Restatements to the Use Agreement and the
Concession Agreement (collectively ("Agreements") and to execute the revocable license agreement
based upon the following conditions: 1) City Commission approval, 2) provision of a Letter of
Credit, 3) the execution of the of the asset purchase agreement(s) between Concorde and Bayfront
Valet to Southeast, 4) Concorde's payment of its arrearage to the Trust, and 5) the other terms and
conditions contained in the Agreements.
TFS/jrg
..Title
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE BAYFRONT PARK MANAGEMENT TRUST ("TRUST") TO
ACCEPT THE TRANSFER AND ASSIGNMENT OF THE AGREEMENTS WITH
THE TRUST FROM CONCORDE CRUISES, INC. TO SOUTHEAST CRUISE
HOLDINGS, LLC; AUTHORIZING THE TRUST'S EXECUTIVE DIRECTOR TO
EXECUTE AN AMENDMENT AND RESTATEMENT TO THE USE AGREEMENT
EXECUTED JUNE 25, 1997, AND AN AMENDMENT AND RESTATEMENT TO
THE VALET PARKING CONCESSION AGREEMENT DATED DECEMBER 8, 1998,
WITH SOUTHEAST CRUISE HOLDINGS, INC., IN SUBSTANTIALLY THE
ATTACHED FORM.
..Body
WHEREAS, the City of Miami ("City") is the owner of the property known as Bayfront
Park ("Park"); and
WHEREAS, pursuant to an agreement with the Department of Army ("Army Corps")
dated August 8, 1990, the City is lessee of portions of the baywalk that is adjacent to the
Park; and
WHEREAS, pursuant to Section 38-101, of the Code of the City of Miami, Florida, as
amended, the Park and the leased area from the Army Corps is managed and operated by
Bayfront Park Management Trust ("Trust") which is authorized to enter into agreements
for the use of those areas (hereinafter collectively referred to as the "Park"); and
WHEREAS, the Trust and Concorde Cruises, Inc. ("Concorde"), formerly known as
Bayfront Ventures, a Florida joint venture, entered into a Use Agreement dated June 25,
1997, ("Use Agreement"), which was further amended on September 26, 1997, in 2001,
and June 27, 2002, for the operation of a casino gaming vessel known as Casino Princesa
("Vessel") at the northern dock of the Park; and
WHEREAS, on December 8, 1998, the Trust and Bayfront Valet, LLC, a Florida limited
liability company ("Bayfront Valet") owned by Concorde, entered into Valet Parking
Concession Agreement ("Concession Agreement"), which was further amended on June
27, 2002, for the operation of valet parking services adjacent to the northern dock of the
Park; and
WHEREAS, currently, Concorde has negotiated an asset purchase agreement with
Southeast Cruise Holdings, LLC ("Southeast") for acquisition of the Vessel, the valet
parking operation and the personal property related thereto; and
WHEREAS, Concorde and Bayfront Valet have requested that the Trust approve an
assignment and transfer to Southeast of their rights, titles and interests in the Use
Agreement and Concession Agreement, respectively; and
WHEREAS, pursuant to the provision of Section 14 of the Use Agreement, Concorde
shall not transfer more than fifteen percent (15%) of its interest without the Trust's prior
approval; and
WHEREAS, pursuant to the provisions of Section XIV of the Concession Agreement
entitled "Assignment," Bayfront Valet may not subcontract, transfer, convey or assign
any of the rights, privileges or premises granted pursuant to the Concession Agreement
without obtaining written consent of the Trust; and
WHEREAS, on April 19, 2004, the Trust approved the transfer and assignment of the
Use Agreement and the Concession Agreement and authorized the Trust's Executive
Director to execute amendments and restatements to these agreements, in substantially
the attached form, with Southeast, subject to the terms and conditions contained therein;
and
WHEREAS, the Trust has determined that the acceptance of the assignment is in the best
interest of the parties and has conditioned its acceptance of the assignment and transfer
and has authorized the Executive Director to execute the amendments and restatements to
the Use Agreement and the Concession Agreement (collectively "Agreements") based
upon the following conditions: (1) City Commission approval, (2) provision of a Letter of
Credit, (3) the execution of the asset purchase agreement(s) between Concorde and
Bayfront Valet to Southeast, (4) Concorde's payment of its arrearage to the Trust, and (5)
the other terms and conditions contained in the Agreements;
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 Trust's Executive Director is authorized { 1 } to accept the transfer and
assignment of the Agreements with Concorde Cruises, Inc. to Southeast Cruise Holdings,
Inc.
Section 3. The Trust's Executive Director is authorized { 1 } to execute: (1) the fourth
amendment to the Use Agreement entitled "Amendment and Restatement to the Use
Agreement" and (2) the second amendment to the Concession Agreement entitled
"Amended and Restated Valet Parking Concession Agreement," in substantially the
attached form, between the Trust, Concorde Cruises, Inc. and Southeast Cruise Holdings,
LLC., based upon the following conditions: (1) City Commission approval, (2) provision
of a Letter of Credit, (3) the execution of the asset purchase agreements between
Concorde and Bayfront Valet to Southeast, (4) Concorde's payment of its arrearage to the
Trust, and (5) the other terms and conditions contained in the Agreements.
Section 4. This Resolution shall become effective immediately upon its adoption and
signature of the Mayor. { 1 }
APPROVED AS TO FORM AND CORRECTNESS:
ALEJANDRO VILARELLO
CITY ATTORNEY
..Footnote
{ 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.
{2} 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.
Term Sheet
For Approval by the
BAYFRONT PARK MANAGEMENT TRUST
Of Request by
Concorde Cruises, Inc.
And
Southeast Cruise Holdings, L.L.C.
Date: April 12, 2004
1. Purpose:
Request by Concorde Cruises, Inc., A South Dakota Corporation (Concorde)
and Southeast Cruise Holdings, L.L.C., a Delaware limited liability corporation
(Southeast), for approval by the Bayfront Park Management Trust (Trust) of
Concorde's transfer and assignment to Southeast of Concorde's right, title and
interest in and to the following agreements (jointly called the "Agreements") :
1. Use Agreement dated June 25, 1997 ("UA").
2. Amendment to Use Agreement dated September 26, 1997 ("UA-1").
3. Amendment No. 2 to Use Agreement (undated) ("UA-2").
4. Third Amendment to Use Agreement dated June 27, 2002 ("UA-3") .
5. Valet Parking and Concession Agreement dated December 8, 1998
("VP").
6. First Amendment to Valet Parking and Concession Agreement dated
June 27, 2002 ("VP-2").
7. Revocable License Agreement for Occupancy of Property Located at 301
North Biscayne Boulevard, Miami, Florida, dated August 3, 1998 and
revised June 26, 1998 ("RLA").
Request is also made for release and cancellation of that certain Guaranty dated
June 27, 2002 executed by Concorde Gaming Corporation, a corporation existing
under the laws of the State of Colorado, in favor of the Trust and the City of
Miami.
11. New, Amended or Prominent Terms and Conditions of the
Agreements
Unless specifically noted as new or amended herein, all terms of the Agreements
shall remain the same. For purposes of simplicity and organization the Use
Agreement and it's amendments shall be merged into an "Amended and
Restated Use Agreement" ("ARUA") which shall combine all original terms and
provisions with subsequent amendments. The same shall be done with the Valet
Parking Concession Agreement and subsequent amendment, which shall be
merged into an "Amended and Restated Valet Parking and Concession
Agreement" (ARVPCA").
III. The Use Agreement and Amendments
A. Facility: As originally described in UA and amended in AU-3, the User
under the UA has a right of use to the area known as the North Dock only. The
Trust may permit use of the South Dock by third parties As long as the User is
not in default under the UA, the South Dock may not be used for gaming
purposes.
B. Term: The Initial Term of the UA commenced September 1, 1997 but
was changed to October 1, 1997 in UA-1 and covered a period of five (5) years.
The Initial term was followed by an Extension Term of an additional five (5)
years and an Additional Term of five (5) years (total 15 years). Currently, the UA
is in the second year of the Extension Term.
C. Fees:
(i) Current total Annual Fees are $ 518,412.00, paid in 12 equal
monthly installments. This amount will increase by an amount equal to 2% of the
fees during each year of the Extension Term and by 4% during each year of the
Additional Term.
(ii) UA-3 requires the Operator to provide an advance payment
equal to the last 3-months payment at the beginning of each Contract year, which
is October 1. This advance payment was required because UA-3 also waived
the requirement of a Letter of Credit (see paragraph D below). The proposed
ARUA will re -incorporate the Letter of Credit requirement and waive the 3-month
advance payment by the User.
(iii) In addition to the Annual Fees there is an additional fee of one
dollar ($1.00) per passenger carried by the vessel in excess of 200,000
passengers during any contract year.
D. Letter of Credit: The UA required a Letter of Credit securing an
amount equal to the annual fees to be paid during the succeeding 2 years of any
Term. This requirement was deleted in UA-3 and replaced by a corporate
Guaranty. The proposed ARUA will re -instate the requirement that the User
provide a Letter of Credit and delete the corporate Guaranty. The Letter of Credit
shall be in a form acceptable to Trust and the City Attorney. The Letter of Credit
shall be provided to the Trust upon its execution of the Agreements and shall
secure the Agreements.
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E. Security Deposit: The UA required, and there is currently in place, a
Security Deposit of One Hundred Thousand Dollars ($100,000.00) to cover non -
monetary defaults/damages. The UA-3 extended it's coverage to monetary
defaults/damages as well. The proposed ARUA reverts to the UA limitation of
covering only non -monetary defaults/damages due to the re -incorporation of the
Letter of Credit.
F. Default Provision:
(i) Payment/Monetary Default: A monetary default occurs upon
failure to pay any Fees when due and continuance of such failure for 25 days
after written notice. There is a ten percent (10%) per annum Default Rate.
(ii) Non -Monetary Default: A non -monetary default occurs upon
failure to perform any other covenant or condition and the continuance of such
failure for 30 days after written notice, except if default cannot be cured due to
"force majure". The proposed ARUA amends this provision by requiring User to
cure defaults within a reasonable time period, in the Trust's sole discretion.
(iii) Draw on the Letter of Credit: Trust may draw on the Letter of
Credit if a monetary Event of Default default is not timely cured or if User files for
or is adjudicated bankrupt.
G. Charitable Cruises:
(i) User shall provide the Trust with the gross revenues of four (4)
"Charitable Sails" each Contract year. "Gross revenues" excludes merchandising
and gaming revenues and bar revenues (unless Trust staffs and stocks bar).
(ii) User shall provide the Trust with two (2) "Community Sails" each
Contract year, but Trust shall not receive merchandising, gaming or bar
revenues.
(iii) User pays reasonable out-of-pocket promotional expenses in
connection with Charitable Sails, not to exceed $5,000.00 per Charitable Sail.
(iv) UA-2 added an additional "Special Community Sail" to be
provided by User to the Trust (in addition to the Community Sails in (ii) above).
(v) Unused Charitable and Community Sails in any Contract Year
are not carried over to the following Contract Year. Unused Special Community
Sails are carried over, automatically, on a cumulative basis, during the remaining
term of the UA.
H. Transfer of Controlling Interest in User and Transfer of Assignment:
This provision remains the same, however, User shall provide the Trust with the
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names of the persons or entities with ownership interest and the percentage of
each ownership interest.
I. Approval of Vessels: This provision remains the same. The Trust has
the right to approve the vessels User can dock on the North Dock, which
approval, as long as vessel does not exceed 260 feet in length, cannot be
unreasonably withheld or delayed. User may also dock non -gaming vessels on
the North Dock as long as they do not dock overnight.
J. Limitations of Activities at Facility: UA-2 amended the UA by imposing
greater restrictions on activities that could be carried out at the Facility.
(i) Painting or heavy maintenance of the vessel is prohibited.
(ii) Fueling can only occur from landside and only between the
hours of midnight to 6 A.M.
(iii) User must use best management practices , comply with all
local, state and federal regulations and carry a Comprehensive General Liability
insurance policy with limits of at least One Million Dollars ($1,000,000.00); an
Environmental Impairment Policy with limits of at least One Million Dollars
($1,000,000.00); and Worker's Compensation statutory coverage.
K. Hours of Operation:
(i) Sunday through Thursday: two (2) cruises daily from 12:00
P.M. to 5:00 P.M., and from 6:30 P.M. to midnight.
(ii) Friday and Saturday: three (3) cruises daily where night cruise
returns after midnight.
(iii) Hours of operation are subject to vary due to business and
weather conditions, and significant changes in operating schedule which require
Trust approval cannot be unreasonably withheld or delayed.
(iv) User acknowledges there may be approximately 10 Significant
Park Events per year, with some events attracting over 100,00 people. The
ARUA shall contain an acknowledgement by User of an additional 60 events per
year in the amphitheater.
L. Taxes: The UA required the Trust as Owner at the Park to execute an
application for exemption of real property taxes imposed by Dade County and the
City of Miami. The UA will be amended to provide that the User shall be
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responsible for payment of Federal, State of local taxes associated with the
operations and activity of the User, whether it is assessed against the User, the
City of the Trust.
M. Provisioning of Vessels:
(i) Provisioning of vessels may occur only between the hours of 12
midnight and 8:00 A.M., except on Friday, Saturday, Sunday nights or nights of
Significant Park Events, during which provisioning may occur only between the
hours of 2:00 A.M. and 8:00 A.M.
(ii) Significant Park Events is defined as occasional community -
wide events held at the Park, which User acknowledges may by approximately
10 per year and attract 100,000 people each.
(iii) Trust is required to give User at least 60 days' written notice
prior to each Significant Park Event.
(iv) The ARUA shall contain acknowledgement by User of an
additional 60 events per year in the amphitheater.
N. Parking: User has parking rights in accordance with the Valet Parking
Concession Agreement (VP) and the First Amendment to Valet Parking and
Concession Agreement (VP-!), referenced above and more specifically below in
this Term Sheet.
O. Utilities: This provision was amended by UA-3. User shall be
responsible for the cost of bringing utilities to the facility. In the event that User
establishes shore -power electric connection to the facility, it shall receive a credit
to the monthly payment of the Annual Use fee and such payment shall be
amortized over a sixty -month period.
P. Insurance; Indemnification:
(i)The User must provide General Liability Insurance (including
liquor liability insurance) covering the Park and the Facilities with the following
limits:
• Personal injury/death: not less than $1,000,000.00 per
person/$2,000,000.00 per occurrence.
• Property damage: not less than $500,000.00 per
occurrence.
(ii) The Trust must also provide similar insurance coverage as User.
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(iii) User indemnifies Trust and members of Board of Trustees for
damages sustained as a result of negligence or willful misconduct by User in the
Park or Facility.
(iv) Trust also indemnifies User for damages sustained by User as
a result of negligence or willful misconduct of Trust, but limited to the extent of
Trust's limited waiver of sovereign immunity under the Florida Statutes.
Q. Termination of Rights: User has the right to terminate the UA upon 30
day's written notice to Trust if:
(i) Due to governmental action User is not legally permitted to
operate an off -shore gaming vessel.
(ii) Due to governmental action casino gambling becomes legal in
the State of Florida and User's passenger count declines to Tess than 80% of
count in prior Contract Year, in which case User shall have the right to negotiate
a just termination fee, which will be not less than one (1) year's fee.
R. Early Termination Procedure: The UA-3 incorporated the following
Early Termination Procedure:
(i) 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 the Use Agreement, as amended, by giving written
notice of not Tess than twenty-four (24) months (such period, the "Notice Period")
to Trust of User's intent to terminate the Use Agreement, as amended, and
vacate the Facility. Notwithstanding User's termination of the Use Agreement, as
amended, pursuant to this section, User may, at User's sole option, continue to
occupy the 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.
(ii) Upon User's vacating the Facility after a termination
pursuant to this section 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 Facility, except that User shall complete repairs, replacement
and/or maintenance of any portion of the Facility commenced, or becoming due
under the terms of the Use Agreement, as amended, prior to User's vacating the
Facility.
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(iii) In the event that User terminates the Use Agreement, as
amended, pursuant to this section , with regard to the Fee, User's maximum
liability to Trust under the terms of the Use Agreement, as amended, shall be an
amount not greater than the sum of (i) all payments remaining due under this
Third Amendment and the Use Agreement, as amended, 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 Facility, and (iv) upon User's
vacating the Facility, the value of any repairs, replacements and/or maintenance
to the Facility commenced and not completed, or becoming due under the terms
of the Use Agreement, as amended, prior to User's vacating the Facility.
S. Notices: Shall change to reflect the current names and addresses
for each party.
T. Approval by the Emergency Financial Oversight Board
This is no longer required by the City.
IV. The Valet Parking Concession Agreement and First Amendment
In this Agreement, Southeast is referred to as "Operator."
A. Concession Granted:
(i) Trust grant Operator exclusive right/privilege to operate the
Services in the Parking Facility and receive all revenues therefrom.
(ii) Parking Facility consists of three (3) Areas.
(iii) The proposed ARVPA anticipates a Modification of the Parking
Facility Area as a result of the construction of the Rock Garden improvements.
B. Limitations: Operator acknowledges that its rights under the VP may
be restricted on certain dates and that the Trust has approximately 60 events a
year in the park.
(i) Trust Dates: Trust has right to designate up to five (5) Trust
dates during which the Trust shall have the right to suspend operator's rights
under the VP or require Operator to provide services at a fee not to exceed $800.
per day.
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(ii) Event Dates: Are days, other than Trust Days, where the Park or
the Amphitheater is used by the Trust. During Event Days the Trust is entitled to
use certain parking spaces free of charge or by purchase.
C. Term: The VP has an initial term of five (5) years with two(2)
additional one year options. Currently, the Agreement is in the first additional
term of the Agreement.
D. Consideration: The VP required an Annual License Fee of One
Hundred Eighty Thousand Dollars ($180,000.00) payable in a combination lump
sum and monthly payments. The Annual License Fee had yearly CPI
adjustments. VP-1 reduced the Annual License Fee to Ninety Thousand Dollars
($90,000.00) and deleted the CPI adjustments. The proposed ARVPA increases
the Annual License Fee to One Hundred Ten Thousand Dollars ($110,000.00)
with no CPI adjustment and an additional increase to One Hundred Twenty
Thousand Dollars ($120,000.00) upon completion of the construction of the Rock
Garden improvements.
E. The Parking Facility: The Trust has sole discretion regarding design
and construction of the Parking Facility, but in no event shall it contain less than
sixty (60) parking spaces.
F. Maintenance/Repair of Parking Facility:
(i) The Operator is responsible for the maintenance and repair of
the Parking Facility at Operator's sole cost and expense.
(ii) The Operator is also responsible for all electricity, telephone and
other utilities connections and for all usage and charges, except normal water
usage at the Parking Facility, which is provided by the Trust.
G. Operation of the Parking Facility: The Parking Facility shall be used by
Operator exclusively for the purpose of operating a valet parking lot for visitors of
the gaming vessel, Park and the general public, in the following manner:
(i) Hours of Operation: Monday through Thursday, from 10:00 A.M.
to 1:00 A.M.; Friday through Sunday, from 10:00 A.M. to 7:00 A.M. of the
following day; On Event Days, during such times as may be required by the
Trust.
H. Manner of Operation: The valet parking services shall be
commensurate with parking facilities of similar operation including, but not limited
to having an attendant present at the facility when there are cars parked at the
Facility.
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I. Parking Rates: Operator can establish and charge parking rates,
provided it cannot charge different rates for different users of the Parking Facility.
J. Licenses and Taxes: The agreement will be amened to provide that
the Operator shall be responsible for payment of Federal, State of local taxes
associated with the operations and activity of the User, whether it is assessed
against the User, the City of the Trust.
K. Indemnification: Operator defends and holds the Trust and City
harmless from all claims by reason of injury, death, damages, etc. caused by
Operator's actions.
L. Insurance: The Operator is required to purchase General Liability
Insurance, Workers' Compensation and other liability insurance, as follows:
• Workers' Compensation and Employer's Liability providing statutory
coverage under the Workers' Compensation laws; and Employer's Liability
coverage with limits of $100,000.00per occurrence of accident,
$100,000.00 per occurrence of disease and $500,000.00 policy
Iimit.Comprehensive General Liability affording (i) Bodily Injury Liability (or
death) with limits of $1,000,000 for each person and, where applicable,
$2,000,000 in the aggregate; and (ii) Property Damage Liability with limits
of $1,000,000 for each occurrence and $2,000,000 in the aggregate, such
coverage to' include: Products Completed Operations, Broad Form
Contractual Liability covering liability assumed under this Agreement,
Broad Form Property Damage, Elevator, and Concessionaire's Contingent
(Protective) Liability with respect to work subcontracted by the
Concessionaire.
• Comprehensive Automobile Liability affording (i) Bodily Injury Liability (or
death) with limits of at least $300,000 each person and $500,000 each
occurrence; and (ii) Property Damage Liability with a limit of at least
$250,000 each occurrence; such coverage to include liability for the
operation of owned, hired, and non -owned vehicles.
M. Default/Resolution of Disputes: In the event of default by Operator
under any term or condition of the VP, the Trust can:
(i) Give Operator written notice of default. Operator has 30 days to
cure non -monetary defaults and 3 days to cure monetary defaults. If the
defaults are not cured within said time frames, Trust can terminate the VP.
(ii) Perform the work necessary to cure default and charge the
Operator.
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N. Assignment: This provision remains the same. The Operator cannot
not subcontract, transfer, convey, or assign any of the rights, privileges or
premises granted under VP in whole or in part to any other person, firm or
corporation without written consent of the Trust which consent may be withheld,
or conditioned, in the Trust's sole discretion. In the event of a transfer of stock of
Operator under this Section, the Trust agrees not to withhold its approval
unreasonably if the person or entity acquiring the stock of Operator is a "Qualified
Transferee". A "Qualified Transferee" shall mean a person who would qualify for
the issuance of a liquor license under Florida law.
O. Right of Cancellation:
(i) Cancellation by Either Party: The VP may be canceled by
either party upon the occurrence of any one of the following events:
• Default by Operator under the Use Agreement.
• Any one of a number of events that has a direct
material adverse impact on the use of the Parking
Facility and/or the provision of the Services.
• Illegality of possession of slot machines by Operator.
• 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.
(ii) Early Termination Procedure:
• Provided that Operator is not in default under the
terms of the Amended Agreements, as defined in the
Guaranty (hereinafter defined), Operator may at any
time terminate this Concession Agreement by giving
written notice of not Tess than twenty four (24) months
(such period, the "Notice Period") to Trust of
Operator's intent to terminate the Concession
Agreement and vacate the Parking Facility.
Notwithstanding Operator's termination of this
Concession Agreement pursuant to this Section XV(b)
Operator may, at Operator's sole option, continue to
occupy the Parking Facility for a period (the "Post -
Notification Use Period") not to exceed eighteen (18)
months from Operator's written notification to Trust of
its election to terminate, during which Post -
Notification Use Period Operator shall continue to
make monthly payments to Trust pursuant to the
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terms and conditions hereof, as such monthly
payments come due, and shall continue to comply
with all non -monetary obligations.
• Upon Operator'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, Operator 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 Operator
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 Operator's vacating the Parking Facility.
• In the event that Operator terminates this Concession
Agreement pursuant to this Section XV(b), with regard
to the payment of the Annual License Fee, Operator'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 Agreement for the
duration of the Notice Period; (ii) any accrued but
unpaid sums owed by Operator to Trust with respect
to payments already due; (iii) full compliance by
Operator of all non -monetary obligations while
Operator is in possession of the Parking Facility, and
(iv) upon Operator'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 Operator's
vacating the Parking Facility.
P. Notices. This provision shall change to reflect the current
names and addresses of the parties.
V. Warehouse Revocable License Agreement.
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The new revocable license agreement Southeast will be
substantially similar to the agreement entered into with Concorde Cruises.
In 1998, when the City and the Trust entered into the revocable license
agreement with Bayfront Ventures, Bayfront Ventures, as the licensee,
agreed to pay the Trust $15,000.00 for use of 1,800 sq.ft. of its surplus
warehouse space. In the new agreement with Southeast, Southeast has
Agreed to pay $25,000.00 in addition to any taxes and fees that may be
assessed against Southeast's use of this facility.
VI. Attorney's Fees
The Use Agreements, the Valet Parking Concession Agreement and the
Revocable License Agreement will contain an attorney's fees provision
that in the event that one party initiates litigation for the enforcement of
these agreements, the nonprevailing party will pay any and all reasonable
attorney s fees and costs expended by the prevailing party, including
those from appellate review at all available levels of review.
12
Amended and Restated
Valet Parking Concession Agreement
THIS AMENDED AND RESTATED VALET PARKING AND CONCESSION
AGREEMENT made and entered into this day of April, 2004,(hereinafter called the
"Restatement") by and between Bayfront Park Management Trust, a limited agency and
instrumentality of the City of Miami (hereinafter called the "Trust"), and Southeast
Cruise Holdings, L.L.C., a Delaware limited liability corporation authorized to do
business in the State of Florida (hereinafter called the "Southeast" or "Operator").
RECITALS
WHEREAS, the City of Miami, Florida, a municipal corporation of the State of
Florida (hereinafter called the "City"), is the owner of the property known as Bayfront
Park (hereinafter called the "Park"); and
WHEREAS, pursuant to an agreement with the Department of Army ("Army
Corps") dated August 8, 1990, attached hereto as Exhibit A, the City is lessee of portions
of the baywalk that is adjacent to the Park; and
WHEREAS, pursuant to Section 38-101, City of Miami Code, the Park and the
leased area from the Army Corps is managed and operated by the Trust which is
authorized to enter into agreements for the use of those areas (hereinafter collectively
referred to as the "Park"); and
WHEREAS, pursuant to Trust's issuance of Request for Proposals for Valet Parking
Services, on December 8, 1998, the Trust and Bayfront Valet, L.L.C., a Florida limited
liability company (hereinafter called "Bayfront Valet") entered into and executed that
certain Valet Parking Concession Agreement (hereinafter called Concession Agreement)
for the operation of valet parking services ("Services") on that portion of Property
described in Exhibit `B" attached hereto (hereinafter "Parking Facilities"); and
WHEREAS, on June 27, 2002 the Trust and Bayfront Valet entered into and
executed that certain FIRST AMENDMENT TO VALET PARKING CONCESSION
AGREEMENT (hereinafter "First Amendment"), w hich a mended c ertain p rovisions o f
the Concession Agreement relating to the consideration paid by Bayfront Valet; and
WHERAS, B ayfront Valet is owned by Concorde Cruises, Inc., which operates
the Casino Princesa, a gaming vessel ("Vessel") adjacent to the North Dock of the Park;
and
WHEREAS, Concorde Cruises, Inc. ("Corcorde Cruises") has negotiated an asset
purchase a greement w ith S outheast for t he Vessel, the valet parking operation and the
personal property related thereto; and
WHEREAS, Bayfront Valet, the current operator under the Concession
Agreement, has requested that the Trust approve an assignment and transfer to
Southeast, of all of Bayfront Valet's right, title and interest in and to the Concession
Agreement; and
WHEREAS, Southeast considers the valet parking operation an integral part of its
operation of the Vessel; and
WHEREAS, pursuant to the provisions Section XIV of the Concession
Agreement entitled "Assignment," Bayfront Valet may not subcontract, transfer, convey
or assign any of the rights, privileges or premises granted pursuant to the Concession
Agreement without obtaining written consent of the Trust; and
WHEREAS, the Trust has made one of its conditions of its acceptance of the
assignment that Southeast execute an amendment to the Concession Agreement in which
it assumes all of Bayfront Valet's right, title, interest, duties and obligations pursuant to
the Concession Agreement and its First Amendment, subject to the terms and conditions
contained herein; and
WHEREAS, the Trust has determined that the acceptance of the assignment is in
the best interest of the parties; and
WHEREAS, on the day of April 2004, the Trust approved the assignment of
the Concession Agreement and its First Amendment, together with of all right, title,
interest, duties and obligations contained therein, to Southeast ; and
WHEREAS, on the _ day of 2004, the City Commission approved the
assignment of the Concession Agreement and its First Amendment, together with of all
right, title, interest, duties and obligations contained therein, to Southeast ; and
WHEREAS the Trust and Southeast wish to further amend the Concession
Agreement and restate and consolidate all modifications and amendments to the
Concession Agreementso that it is binding upon Southeast and effective as of the date of
the execution of this Restatement. (As used in this Amended and Restated Valet Parking
Concession Agreement the terms "Concession Agreement", and "Agreement" may be
used interchangeably and shall mean the Valet Parking and Concession Agreement dated
December 8, 1998 and all subsequent amendments and modifications thereto, including
this Amended and Restated Valet Parking Concession Agreement).
NOW THEREFORE, in consideration of the promises and of the mutual
covenants and conditions hereinafter contained to be kept and performed by the
respective parties, it is agreed as follows:
2
I
RECITALS
The foregoing recitals are true and correct and are hereby incorporated and made
a part of this Agreement.
II
USE AGREEMENT
On , 2004, pursuant to the Acceptance of Assignment executed
between the Trust, Concorde Cruises and Southeast, Southeast executed the Amended
and Restated Use Agreement (hereinafter "Restated Use Agreement") dated
, 2004. This Service is provided in conjunction to the Restated Use
Agreement. Collectively the Use Agreement and the amendments thereto, this Use
Agreement, any agreement between the Trust and Southeast to use the Trust's warehouse
facilities, and the Concession Agreement and the amendments thereto, including this
Restatement, shall hereinafter be referred to as the "Amended Agreements."
III
CONCESSION GRANTED
Except as specifically prohibited or limited in thisReinstatement, the Trust hereby
grants to the Operator the right and privilege to operate the Services in the Parking
Facility and to receive all revenues therefrom and, in connection therewith, the right to
use, in common with others, those driveways and roadways located upon the Park area,
all in accordance with the terms and provisions set forth herein. The City owns or leases
the entire right, title and interest to the Parking Facility and that they have the sole right
to grant to the Operator this exclusive concession. The Parking Facility shall consist of
three (3) areas, designated and depicted in Exhibit "B" as Areas "A", "B" and "C". The
license herein granted is also referred to herein as the "Concession".
It is understood and agreed that the Trust retains all rights to the area in front of
the entrance to the Trust's offices, which is more particularly depicted in Exhibit B"
attached hereto, including parking rights in said area. The Trust hereby grants the
Operator the non-exclusive right of ingress and egress over said area, for the purposes of
accessing the Parking Facility in order to provide the Services.
IV
LIMITATIONS
The Operator understands that there are approximately sixty events that are
conducted in the Park. Operator further understands and agrees that its rights under this
Agreement may be restricted or limited, as herein provided, during the days that the Park,
3
the Amphitheater, or any portion thereof, is used by the Trust, or by any third party
pursuant to an agreement with the Trust, for any purpose whatsoever. The restrictions on
Operator's rights hereunder are as follows:
A. Trust Dates: Trust Dates are the dates on which the Trust is the sponsor of an
event, or any other day designated by the Trust as a "Trust Date" in accordance
with this Section. The Trust shall have the right to designate up to five (5) dates
as "Trust Dates" by giving Operator written notice of the anticipated date of each
on or before January 15 of each year. The actual date of each Trust Date, as well
as any change on a date previously reserved, shall be given to the Operator at least
ten (10) days in advance of the anticipated Trust Date. During Trust Dates the
Trust shall have the right, in its sole discretion, to (I) suspend Operator's rights
hereunder and operate the Parking Facility itself or grant another party the right to
operate the Parking Facility, or (ii) require the Operator to provide the Services, at
a fee not to exceed $800.00 per day and remit all revenues therefrom to the Trust
or as designated by the Trust.
B. Event Dates: Event Dates are any days, other than Trust Dates that the Park, the
Amphitheater, or any portion thereof, is used by the Trust, or by any third party
pursuant to an agreement with the City or the Trust, for any purpose whatsoever,
including the times for "set-up" and "dismantle." During EventDates, the Trust
shall be entitled to receive ten (10) parking spaces in Area "A" at no charge, and
to purchase up to twenty (20) parking spaces, in Areas "A" and `B", as described
in Exhibit `B", at a daily rate not to exceed $20.00 per parking space. The Trust
shall exercise its right to purchase the twenty (20) parking spaces by making
written request thereof to Operator at least forty-eight (48) hours prior to the
proposed event. Operator agrees to issue parking passes to evidence the user's
right to use the Parking Facility under this Section. The Trust shall pay the cost
of each parking space purchased under this Section within fifteen (15) days of its
receipt of the Operator's invoice, provided, however, that there shall be no charge
if the event for which the passes have been issued is canceled.
V
TERM
The initial term of this Agreement shall be for an initial term of five (5) years
commencing on the Commencement Date, as defined in Article V below. The Trust shall
have two (2) options to extend the term for an additional term of one (1) year each, upon
the same terms and conditions contained herein, by giving Operator at least ninety (90)
days prior written notice.
The original Concession Agreement was executed December 8, 1998.
Southeast's assignment and this Restatement is commencing during the first additional
term for the Trust to extend the Agreement. This first additional term ends December 7,
2004. In the event that the Operator wishes to exercise the option for the second
4
additional one-year term, Operator shall notify the Trust ninety (90) days prior to the
expiration of the first additional term.
VI
CONSIDERATION
The Operator shall pay to theTrust, in consideration for the concessions and privileges
herein granted, an Annual License Fee of One Hundred Ten Thousand Dollars
($110,000.00). The Annual License Fee shall be payable in equal monthly payments of
Nine Thousand Six Hundred Sixty-six Dollars and sixty-seven cents ($9,166.67), each,
with each such payment due and payable on the 8"' day of every month during each year
of the term of this Concession Agreement.
Any payment that is 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 0 perator's a ctivities h ereunder, i ncluding s pecifically, but without limiting
the generality of the foregoing, sales or use taxes.
VII
THE PARKING FACILITY / IMPROVEMENTS / COMMENCEMENT DATE
The Trust shall deliver to Operator the Parking Facility ready for operation and
with sufficient lighting. The Parking Facility and the improvements thereto consist of
those contained in Exhibits A and B. the Trust is contemplating future improvements to
the Parking Facility that are depicted in Exhibit C. The Trust shall have sole discretion
regarding the design and construction of the improvements, provided, however, that in no
event shall the Parking Facility contain less than sixty (60) parking spaces.
VIII
MAINTENANCE, AND REPAIR OF PARKING FACILITY
The Operator agrees to maintain and repair, at his own cost and expense, the
Parking F acility a nd a 11 personal property, equipment and furnishings necessary for its
operation, according to reasonable standards acceptable to the Trust, and to surrender said
facility, at the termination of the term of this Agreement, in at least as good condition as
received ordinary wear and tear excepted. Further, Operator agrees to furnish, at its own
cost and expense, all personal property and equipment necessary to the successful
operation of the Parking Facility and to replace at its own expense any such property or
equipment provided under the Agreement which has been destroyed, damaged, or
become inoperable due to normal wear and tear, with like property or equipment.
Operator shall have the right to erect on the Parking Facility a coin collection box and
5
professional parking signs, as long as they do not violate local ordinances, if any, or Park
rules, and provided that all such signs and improvements are first approved by the Trust.
Neither the Trust nor the City shall be responsible for any goods, merchandise or
equipment stored at the Parking Facility nor will it be responsible for damage resulting
from a power failure, hurricane, tornado, flood, fire, explosion and/or other force majeure
causes.
The Operator shall be responsible for all electricity, telephone and other utilities
connections, including the installation of a separate electrical meter, if required by
theTrust, and for all usage and other charges, excepting only charges for normal water
usage at the Parking Facility, which shall be provided by the Trust.
The Operator shall be responsible for keeping the Parking Facility in a clean
condition, free of debris at all times during the term of this Agreement.
IX
OPERATION OF THE PARKING FACILITY
The Parking Facility shall be used by Operator exclusively for the purpose of
operating a valet parking lot for use of visitors to the Vessel, Park and the general public.
The Parking Facility shall not be used in any manner to create any nuisance nor
hazardous or unsafe condition in the Park.
Except as provided in Article IV hereof, entitled "Limitations," Operator shall
operate the valet parking services 365 days during such times as may be required to
properly service the public and the gaming vessel's operations. Without limiting the
generality of the foregoing, Operator agrees to operate the valet parking, Monday through
Thursday from 10:00 am. to 1:00 am.; Friday, through Sunday from 10:00 am. through
7:00 am. of the following day and on EventDates, during such times as may be required
by the Trust to properly service the public. Additionally, Operator agrees to provide
adequate staff, to control and direct the use of the Facility, during non -valet parking
hours, in connection with the gaming vessel. The parties agree that the hours of
operation may be subject to change in order to accomplish the purposes herein
established and Operator agrees, to the extent possible, to obtain the Trust prior written
consent to any change in the hours of operation of the Parking Facility.
Operator shall operate the Parking Facilities and provide the Services at a level
commensurate with parking facilities of similar operations, which includes, but is not
limited to, having an attendant present at all times which valeted cars are present in the
Parking Facility. The Services shall be provided in an efficient, safe and courteous
manner to all users of the Parking Facility. In this regard, Operator shall promptly
respond to all complaints of the Trust, the City, Park guests, gaming vessel guests and
members of the general public relating to the provision of Services. Operator shall
procure and maintain, at all times during the term of this Agreement, all required
6
occupational licenses and display them in accordance with all applicable laws and
regulations.
Operator shall have the right to establish and change parking rates, provided;
however, that Operator shall not charge different rates for different users of the Parking
Facility, except for patron of the gaming vessel which may be charged a discounted rate.
The Operator shall have the right to have "special" rates apply to specific events with the
Trust's prior written consent. Operator agrees to establish its parking rates in accordance
with prevailing market rates. All charges shall be posted in clear and readable signage, in
a conspicuous place in the Parking Facility, readily accessible to the users of the Services.
Notwithstanding anything herein to the contrary, Operator and the Trust agree that the
maximum rate to be charged for the use of the Parking Facility shall in no event exceed
the sum of $20.00 per day, and said rate shall not be increased more often than once per
year, provided that said increase does not exceed the corresponding increase in the CPI
and that Operator first obtains the Trust's prior written Consent.
The Operator shall have the right to tow any vehicles that are parked or remain in
the Parking Facility in violation of this Agreement and the Trust shall have the right to
tow any vehicles that are parked in other areas within the Park in violation of this
Agreement. The Operator hereby indemnifies and holds the Trust and the City harmless
from and against any and all costs relating to the Trust's exercise of its right to tow
hereunder.
X
PERS ONNEL
The Operator shall employ, train and supervise all personnel hired by it to provide
the Services. The Operator shall be deemed to represent and warrant to the Trust and the
City that all personnel engaged for the provision of Services are fully qualified to perform
such services. Operator shall have a hiring practice regarding minorities and women,
which will ensure equity in the employment and utilization of same. Operator
acknowledges that it has been furnished a copy of Ordinance No 10062, the Minority and
Women Business Affairs Procurement Program Ordinance of the City of Miami, and
agrees to comply with all applicable substantive and procedural provisions therein,
including any amendments thereto.
Operator shall observe and shall ensure compliance with the following
requirements at all times:
(a) Services shall be rendered in a professional manner to all
individuals regardless of race, color, creed, age, sex, disability, marital status, or
national origin.
(b) Employees shall at all times be neatly attired in clean uniforms and
wear an identification badge.
7
(c) All employees involved in the provision of Services at the Parking
Facility shall be bondable and shall have satisfactorily completed drug tests to be
given by Operator.
(d) Operator shall be responsible for the selection and training of all
personnel. S pecial attention s hall be required to select staff that is personable,
service -oriented, and committed to the satisfactory service of the patrons of the
Parking Facility.
(e) Operator and its employees will not distribute campaign or
political literature of any kind in the Parking Facility.
(f) Operator shall provide adequate personnel to provide quality
service at all times. Employees deemed not to be in the best interest of the City
and/or the Trust shall be discussed with the Operator and the Trust. Operator and
the Trust agree to use their best efforts to reach an agreement on all matters
relating to personnel.
(g) It is understood that Operator, including its agents and employees,
shall not be an agent or employee of the Trust, but shall be an independent
contractor. It is further understood that the Operator shall be responsible for
making all payroll deductions and paying any and all income and other taxes as
may be applicable and necessary to its personnel.
XI
MANAGEMENT / TRAINING PROGRAM
Operator shall designate a management representative of the Operator who shall
serve as the liaison between the Trust and the Operator. Said manager shall remain on
call on a 24-hour basis during events at the Park should he/she need to be contacted by
the Trust. In addition, the Trust shall be provided with a telephone number and beeper
where said individual can be reached at all times, 24 hours per day, 7 days per week. It is
expected said manager shall immediately respond to any requests and/or concerns by the
Trust within a maximum of 24 hours, or immediately on the day of an event.
Regular on -site scheduled and unscheduled visits shall be made by corporate
representatives of Operator to ensure adherence to all requirements of this Agreement and
the specifications within the Solicitation Documents, and to determine whether there are
any deficiencies as determined by the Trust that need to be addressed.
The manager of Operator and the Trust designated representative shall consult
from time to time with reference to the operations of Operator to review such operations
to provide the Services in a proper manner for persons attending the Park. Additionally,
prior to an event, the Trust and the manager of Operator shall meet to discuss the
requirements for the particular event.
8
XII
LICENSES AND TAXES
The Operator shall pay for and obtain all licenses and permits necessary for the
operation of valet parking services. Operator represents and w arrants t hat i t c urrently
has, and at all times during the term hereof shall maintain, all licenses and permits
required for the fill and proper performance of this Agreement.
The Operator shall pay to the State of Florida, promptly when due, all taxes
assessed against the Operator or otherwise imposed in connection with this Agreement.
Operator agrees to include the State Sales Tax in all the advertised prices.
The Operator shall pay all social security, unemployment insurance, and other
federal and state taxes which are measured by the wages, salaries or other remuneration
paid to persons employed by Operator.
XIII
INDEMNIFICATION
Operator shall indemnify, defend and hold harmless the Trust and the City and
their respective officials, employees and agents (collectively referred to as "Indemnities")
and each of them from and against all loss, costs, penalties, fines, damages, claims,
expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities")
by reason of any injury to or death of any person or damage to or destruction or loss of
any property arising out of, resulting from, or in connection with (i) the performance or
non-performance of the Services contemplated by this Agreement which is or is alleged
to be directly or indirectly caused, in whole or in part, by any act, omission, default or
negligence (whether active or passive) of Operator or its employees, agents or
subcontractors (collectively referred to as "Operator"), regardless of whether it is alleged
to be caused in whole or part (whether joint, concurrent or contributing) by any act,
omission, default or negligence (whether active or passive) of the Indemnities, or any of
them or (ii) the failure of the Operator to comply with any of the paragraphs herein or the
failure of the Operator to conform to statutes, ordinances or other regulations or
requirements of any governmental authority, federal or state, in connection with the
performance of this Agreement, (iii) the exercise of the Trust's right to tow vehicles in
accordance with the provisions of Article IX, entitled "Maintenance And Repair of
Parking Facility," hereof. Operator expressly agrees to indemnify and hold harmless the
indemnities, or any of them, from and against all liabilities which may be asserted by an
employee or former employee of Operator, or any of its subcontractors, as provided
above, for which the Operator's liability t o s uch e mployee o r former employee w ould
otherwise be limited to payments under state Workers' Compensation or similar laws.
Operator further agrees to indemnify, defend and hold harmless the Indemnities
from and against (i) any and all Liabilities imposed on account of the violation of any
law, ordinance, order, rule, regulation, condition, or requirement, in any way related,
9
directly or indirectly, to Operator's performance hereunder, compliance with which is left
by this Agreement to the Operator, and (ii) any and all claims, liens and/or Suits for labor
and materials furnished by the Operator or utilized in the performance of this Agreement,
if any.
XIV
INSURANCE
The Operator shall take out, pay for, and at all times during the term of this
Agreement maintain, such public, contingent (where applicable, professional
malpractice) and employer's liability insurance as will satisfy the foregoing indemnity
requirements of the Agreement and protect Operator, the Trust and the City from claims
under Workers' Compensation and other employee benefit acts (the "Insurance"). The
insurance shall include Comprehensive General Liability and property and damage,
including automobile, products completed operations and broad form contractual
covering liability assumed by the Operator under this Agreement. The insurance shall:
(i) include the Trust and the City as insured; (ii) be primary insurance written on an
occurrence basis to the full limits of liability hereinafter stated, and should the Trust or
the City have other valid insurance, said insurance shall be excess insurance only;
(iii) include a waiver of subrogation against the Trust, the City, and their respective
officers, agents and employees, (iv) include a severability clause substantially in the
following form:
"The i nsurance a fforded a pplies s eparately t o e ach i nsured
against whom claim is made or suit is brought, but the
inclusion hereunder of more than one insured shall not
operate to increase the limits of the insurance carrier's
liability. The inclusion of any person or organization as an
insured shall not affect any right that such
person/organization would have as a claimant if not so
included," and
(iv) contain an endorsement substantially stating:
"Cancellation or expiration of the policy to which this
endorsement is attached shall not become effective until
after thirty (30) days advance written notice has been
delivered to theTrust.
Attention: Executive Director
Bayfront Park Management Trust
301 N. Biscayne Boulevard
Miami, Florida 33132
cc: Risk Management Administrator
444 SW. 2nd Avenue. Ninth Floor
10
Miami, Florida 33130
Without limitation of the requirements set forth in this section, Operator shall maintain
insurance with coverage and minimal limits of liability as follows:
(1)
Workers' Compensation and Employer's Liability providing statutory coverage
under the Workers' Compensation laws and Employer's Liability coverage with
limits of $ $100,000 per each occurrence of disease and $100,000 per each
occurrence of accident and $500,000, policy limit.
(2) Comprehensive General Liability affording (i) Bodily Injury Liability (or death)
with limits of $1,000,000 for each person and, where applicable, $2,000,000 in
the aggregate; and (ii) Property Damage Liability with limits of $1,000,000 for
each occurrence and $2,000,000 in the aggregate, such coverage to' include:
Products Completed Operations, Broad Form Contractual Liability covering
liability assumed under this Agreement, Broad Form Property Damage, Elevator,
and Concessionaire's Contingent (Protective) Liability with respect to work
subcontracted by the Concessionaire.
(3)
Comprehensive Automobile Liability affording (i) Bodily Injury Liability (or
death) with limits of at least $300,000 each person and $500,000 each occurrence;
and (ii) Property Damage Liability with a limit of at least $250,000 each
occurrence; such coverage to include liability for the operation of owned, hired,
and non -owned vehicles,
In no event shall the provisions of this Section be construed in any way to limit
Operator's obligations under any provision of this Agreement, including, but not limited
to, Operator's obligations to indemnify, defend and hold harmless the Indemnities.
The insurance coverage required herein shall be through policies issued by
companies authorized to do business under the laws of the State of Florida. The
Company must be rated by the latest edition of Best's Insurance Guide, published by
Alfred M. Best Company, Inc. [or other recognized organization] at no less than an "A"
Best Policyholders Rating and no less than an "X" rating in Best's Financial Size
Category.
All such insurance, including renewals, shall be subject to the approval of the
Trust for adequacy of protection, and evidence of such coverage shall be furnished to the
Trust on Certificates of Insurance indicating such insurance to be in force and effect and
providing that it will not be canceled during the performance of the services under this
Agreement without thirty (30) calendar days prior written notice to the Trust, Completed
Certificates of Insurance shall be filed with the Trust prior to the performance of services
hereunder, provided, however, that Operator shall at any time upon request file duplicate
copies of the policies of such insurance with the Trust.
If, i n the j udgment of the Trust, prevailing conditions warrant the provision by
Operator of additional liability insurance coverage or coverage which is different in kind,
11
the Trust reserves the right to require the provision by Operator of an amount of coverage
different from the above stated amounts or kind and shall afford written notice of such
change in requirements thirty (30) days prior to the date on which the requirements shall
take effect. Should the Operator fail or refuse to satisfy the requirement of changed
coverage within thirty (30) days following the Trust's written notice, this Agreement
shall be considered terminated on the date that the required change in policy coverage
would otherwise take effect.
XV
DEFAULT / RESOLUTION OF DISPUTES
If Operator fails to comply with any term or condition, or fails to perform any of
its obligations under this Agreement, in the manner and within the time provided for
performance hereunder, then Operator shall be in default. Upon the occurrence of a
default hereunder, the Trust, in addition to all remedies available to it by law, shall have
the following options, and its choice of any option shall in no way waive its right to select
any other option at any time:
(ha) To give Operator written notice of such default. If the Operator
does not cure said default within thirty (30) days in the event of a non -monetary
default, and within three (3) business days in the event of a monetary default, after
written notice thereof is given to Operator, then the Trust may terminate this
Agreement, assume the operation of the Operator hereunder, and exclude the
Operator from the premises and/or; and/or may recover at law any and all claims
which may be due the Trust under this Agreement and/or
(ib) The Trust may perform such work as it deems necessary to cure
said default and charge the Operator for the full cost of labor and materials
expended. Operator shall agree to pay the full cost of labor and materials
expended by the Trust.
Operator understands and agrees that termination of this Agreement under this
section shall not release Operator from any obligations accruing prior to the effective date
of termination.
In the event the Trust defaults in the performance of any of the provisions of this
Agreement, Operator may give the Trust written notice of such default. If the Trust fails
to cure said default within thirty (30) days after written notice was given, or make
reasonable progress to cure said default, then Operator may terminate this Agreement.
XVI
ASSIGNMENT
Operator shall not subcontract, transfer, convey, or assign any of the rights,
privileges or premises granted under this Agreement in whole or in part to any other
person, firm or corporation without written consent of the Trust which consent may be
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withheld, o r c onditioned, in the Trust's sole discretion, For purposes of this section, a
transfer of five percent (5%) or more of the stock of Operator, during the term of this
Agreement, whether as a single transaction or a series of transactions, shall constitute an
"Assignment." In the event of a transfer of stock of Operator under this Section, the Trust
agrees not to withhold its approval unreasonably if the person or entity acquiring the
stock o f Operator i s a " Qualified T ransferee". A "Qualified Transferee" shall mean a
person who would qualify for the issuance of a liquor license under Florida law.
XVII
RIGHT OF CANCELLATION
(a) Cancellation by Either Party This Restatement may be canceled by either party
upon the occurrence of any one of the following events, Cancellation under this section
shall be effective not earlier than thirty (30) days after written notice of election to cancel
is given by either party:
(b)
(i)
Default on the part of Southeast under the the Amended
Agreements.
(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 o r
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 IN 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.
Early Termination Procedure:
(i)
Provided that Operator is not in default under the terms of the
Amended Agreements, Operator may at any time terminate this
Concession Agreement by giving prior w ritten n otice o f n of 1 ess
than tw n four (24) months ( hereinafter the "Notice Period") to
Trust of Operator's intent to terminate the Concession Agreement
and vacate the Parking Facility. Notwithstanding Operator's
termination of this Concession Agreement pursuant to this
subsection entitled "Early Termination Procedure", Operator may,
at Operator's sole option, continue to occupy the Parking Facility
for a period not to exceed eighteen (18) months after Operator's
written notification to Trust of its election to terminate (hereinafter
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the "Post -Notification Use Period"). During such Post -Notification
Use Period Operator 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.
(56) Upon Operator's vacating the Parking Facility after a termination
pursuant to this subsection entitled "Early Termination Procedure",
whether such vacating occurs (i) immediately, (ii) at some point
prior to the running of the Post -Notification Use Period, or (iii)
upon the termination of the Post -Notification Use Period, then,
throughout the remainder of the Notice Period, Operator 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 Operator shall
complete repairs, replacement and/or m aintenance o f any portion
of the Parking Facility commenced and not completed, or
becoming due under the terms of this Concession Agreement, prior
to Operator's vacating the Parking Facility.
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In the event that Operator terminates this Concession Agreement
pursuant to this subsection entitled "Early Termination
Procedure"„ with regard to the Annual License Fee Operator'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 Agreement for the
duration of the Notice Period; (ii) any accrued but unpaid sums
owed by Operator to Trust with respect to payments already due;
(iii) full c ompliance b y Operator of all non -monetary obligations
while Operator is in possession of the Parking Facility, and (iv)
upon Operator'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 Operator's vacating the
Parking Facility.
XVIII
ABANDONMENT
If Operator vacates or abandons its operations hereunder for a period of seven (7)
consecutive days during the term of this Agreement, then the Trust, at its option and
without serving notice e lsewhere r equired i n t his A greement, m ay: (a) t ake i mmediate
possession thereof for the remainder of the said term, and, at its discretion, re -advertise
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and solicit proposals for the provision of the Services, with Operator remaining liable for
the Annual Payment, and for all other obligations under this Agreement to the same
extent as if said abandonment had not taken place; or (b) cancel this Agreement, without
prejudice to its rights and remedies under applicable laws.
XIX
INSPECTION RIGHTS
The Trust may, at reasonable times during the term hereof, inspect Operator's
facilities to determine whether the Services required to be provided by Operator under
this Agreement conform to the terms hereof and/or the terms of the Solicitation
Documents, if applicable. Operator shall make available to the City all reasonable
facilities and assistance to facilitate the performance of inspections by the Trust's
representative.
XX
AWARD OF AGREEMENT
Operator represents and warrants to the Trust and the City that it has not
employed or retained any person or company employed by the City to solicit or secure
this Agreement and that it has not offered to pay, paid, or agreed to pay any person any
fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in
connection with, the award of this Agreement.
XXI
PUBLIC RECORDS
Operator understands that the public shall have access, at all reasonable times, to
all documents and information pertaining to City and Trust contracts, subject to the
provisions of Chapter 119, Florida Statutes, and agrees to allow access by the public to
all documents subject to disclosure under applicable law, Either party's failure or refusal
to comply with the provisions of this section shall result in the immediate cancellation of
this Agreement by the Trust.
XXII
COMPLIANCE WITH LAWS REGULATIONS AND DIRECTIVES
Operator understands that agreements between private entities and local
governments are subject to certain laws and regulations, including laws pertaining to
public records, conflict of interest, record keeping, etc. The Trust and the Operator agree
to comply with and observe all applicable laws, codes and ordinances as the may be
amended from time to time.
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Operator will use the Parking Facility for no purpose other than specified in this
Agreement and the business conducted thereunder will be operated in strict compliance
with all laws of the United States and the State of Florida, and with all applicable codes,
rules and regulations. Operator shall not permit the Parking Facility, or any part thereof,
to be used for any unlawful or immoral purpose or in any manner as to injure persons or
property in, or on, or near said premises.
Operator understands that the the Trust reserves the right in its sole discretion to
cancel, interrupt, or terminate any performance, event, public or private gathering upon
its premises, whether or not admission has been charged, and to dismiss the audience, or
cause the same to be dismissed; and the Operator hereby agrees that it will not make or
allow to be made against the City or the Trust, any claim for damages to the Operator or
other party arising out of any acts of the City, the Trust, or their respective officers,
agents, or employees, in the exercise of their discretion as herein provided
All areas which are open to the public shall be available for use and enjoyment by
the public without regard to race, color, creed, sex, age, national origin, marital status or
disability.
XXIII
CONFLICT OF INTEREST
Operator i s aware of the conflict of interest laws of the City of Miami (Miami
City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-
11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees
that it will fully comply in all respects with the terms of said laws. Operator, in the
performance of this Agreement, shall be subject to the more restrictive law and/or
guidelines regarding conflict of interest promulgated by federal, state or local
government.
XXIV
NONDISCRIMINATION
Operator represents and warrants that it does not and will not engage in
discriminatory practices and that there shall be no discrimination in connection with
Operator's performance under this Agreement on account of race, color, sex, r eligion,
age, disability, marital status or national origin. Operator further covenants that no
otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion,
age, handicap, marital status or national origin, be excluded from participation in, be
denied services, or be subject to discrimination under any provision of this Concession
Agreement and Restatement.
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XXV
NOTICES
All notices or other communications required under this Agreement shall be in writing
and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt
requested, addressed to the other party at the address indicated herein or to such other
address as a party may d esignate b y n otice g iven a s h erein p rovided. N otice s hall b e
deemed given on the day on which personally delivered; or, if by mail, on the fifth day
after being posted or the date of actual receipt, whichever is earlier.
To the Trust: To Southeast
Timothy F. Schmand, Executive Director
Bayfront Park Management Trust
301 N. Biscayne Boulevard
Miami, Florida 33132
With copies to:
Alejandro Vilarello, City Attomey
City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
XXVI
MISCELLANEOUS PROVISIONS
A. This Agreement shall be construed and enforced according to the laws of
the State of' Florida. Venue for any legal proceedings shall be Miami -Dade County.
B. Title and paragraph headings are for convenient reference and are not a
part of this Agreement.
C. No waiver or breach of any provision of this Agreement shall constitute a
waiver of any subsequent breach of the same or any other provision hereof, and no
waiver shall be effective unless made in writing.
D. Should any provision, paragraph, sentence, word or phrase contained in
this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or
otherwise unenforceable under the laws of the State of Florida or the City of Miami, such
provision, paragraph, sentence, word or phrase shall be deemed modified to the extent
17
necessary in order to conform with such laws, or if not modifiable, then same shall be
deemed severable, and in either event, the remaining terms and provisions of this
Agreement shall remain unmodified and in full force and effect or limitation of its use.
E. This Agreement constitutes the sole and entire agreement between the
parties hereto. No modification or amendment hereto shall he valid unless in writing and
executed by property authorized representatives of the parties hereto.
XXVII
SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto, their heirs, executors,
legal representatives, successors, or assigns.
XXVIII
INDEPENDENT CONTRACTOR
Operator has been procured and is being engaged to provide the Services as an
independent contractor, and not as an agent or employee of the Trust or the City.
Accordingly, Operator shall not attain, nor be entitled to, any rights or benefits under the
Civil Service or Pension Ordinances of the City, nor any rights generally afforded
classified or unclassified employees. Operator further understands that Florida Workers'
Compensation benefits available to employees of the Trust or the City are not available to
Operator, and agrees to provide workers' compensation insurance for any employee or
agent of Operator rendering Services under this Agreement.
XXIX
COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which, when taken together, shall constitute one and
the same agreement.
XXX
LETTER OF CREDIT
BBB. Incorporated by reference in this Restatement is a letter of credit executed
byVanguard, a corporation existing under the laws of the State of
("Guarantor"), in favor of the Trust and of the City of Miami, wherein
Guarantor guarantees the performance and payment obligations of Operator ("Letter of
Credit") pursuant to the Amended Agreements. Upon the expiration or other termination
of each of the Amended Agreements and the payment in full and performance in full of
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all Indebtedness (as defined in the Letter of Credit) of Operator to Trust, Trust shall sign
a release.
XXXI
EFFECT OF RESTATEMENT
The terms and provisions of this Restatement shall apply to Southeast and take
effect on , 2004, and apply to the payments due and
payable ,2004.
It is the intention of the parties that Bayfront Valet, and its parent company Concorde
Cruises, respectively, is liable to the City and the Trust for all of the terms and provisions
of the Concession Agreementfrom the date that it executed the Concession Agreement
until the date of execution of this Restatement by Southeast. It is the parties' intention
that this Restatement is an amendment and restatement to the Concession Agreement and
that Southeast is liable to the City and the Trust for the terms and provisions contained in
this Restatement and any amendments hereto from this date forth. In the event of a
conflict between the Valet Parking Concession Agreement dated December 8, 1998, the
First Amendment to Valet Parking Concession Agreement dated June 27, 2002 and this
Amended and Restated Valet Parking Concession Agreement, the provisions contained in
this Restatement shall prevail.
XXXII
FORCE MAJEURE
In the event that the Trust or Operator shall be delayed, hindered in, or prevented
from the performance of any act required hereunder by reason of strikes, lockouts,
inability to procure materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, default of the other party, or other reason beyond t heir
control, the prevented party shall provide Notice to the other party, and the performance
of such act shall be excused for the period of the delay and the period for the performance
of any such act shall be extended for a period equivalent to the period of such delay.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their respective officials thereunto duly authorized, this the day and year
above written.
BAYFRONT PARK MANAGEMENT
TRUST
By: By:
Print Name: Timothy F. Schmand
Print Title: Executive Director
Approved as to form and correctness: Approved as to Risk Requirements
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Dania Carrillo
Alejandro Vilarello Risk Management Administator
City Attorney
ATTEST:
Southeast Cruise Holdings, LLC, a Delaware
limited liability company authorized to do
business in the State of Florida
By:
Secretary Managing Partner
Attest: Bayfront Valet
Print Name:
Print Title:
Print Name:
Print Title:
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