Exhibit 2 - Third Amendment

Exhibit 2
Page 1 of 11
THIRD AMENDMENT
to
THE
AGREEMENT
between
BROWARD COUNTY
and
CRE LAS OLAS RIVERFRONT, LLC
Successor to
LAS OLAS RIVERFRONT ASSOCIATES LIMITED PARTNERSHIP
Successor to
HISTORIC BRICKELL LTD.
for
FOR USE OF BROWARD COUNTY GOVERNMENTAL CENTER GARAGE
FOR PARKING BY GENERAL PUBLIC
Exhibit 2
Page 2 of 11
THIRD AMENDMENT
to
THE
AGREEMENT
between
BROWARD COUNTY
and
CRE LAS OLAS RIVERFRONT LIMITED PARTNERSHIP
Successor to
LAS OLAS RIVERFRONT ASSOCIATES LIMITED PARTNERSHIP
Successor to
HISTORIC BRICKELL LTD.
for
FOR USE OF BROWARD COUNTY GOVERNMENTAL CENTER GARAGE
FOR PARKING BY GENERAL PUBLIC
This is the Third Amendment to the Agreement for use of Broward County
Governmental Center Garage for parking by general public ("Third Amendment") by and
between BROWARD COUNTY, a political subdivision of the State of Florida, hereinafter
referred to as "COUNTY,"
And
CRE LAS OLAS RIVERFRONT, LLC, a Delaware limited partnership (hereinafter
referred to as "CRE LOR" or "LOR", as successor in interest to HISTORIC BRICKELL,
LTD.), as successor in interest to LAS OLAS RIVERFRONT ASSOCIATES LIMITED
PARTNERSHIP, its successors and assigns.
WHEREAS, COUNTY and CRE LOR, as successor in interest, entered into an
Agreement between Broward County and Historic Brickell, Ltd., for use of Broward
County Governmental Center Garage for Parking by General Public, dated July 13, 1993,
as further clarified in a letter of understanding, dated June 5, 1998, pertaining to parking
arrangements in the Parking Garage (as this and other capitalized terms used herein and
not otherwise defined are defined in the Original Agreement), consisting of an
-1-
Exhibit 2
Page 3 of 11
approximately 1200 space garage (the "New Garage") and an approximately 350 space
garage (the "Old Garage"); and
WHEREAS, COUNTY and CRE LOR, successor in interest, entered into a First
Amendment to Agreement (the "First Amendment") between Broward County and Las
Olas Riverfront Associates Limited Partnership, successor to Historic Brickell Ltd., for Use
of Broward County Governmental Center Garage for Parking by General Public, dated
May 23, 2000, to permit the COUNTY to charge for public parking in the New Garage, to
expand the availability of public parking during daytime business hours in the New
Garage, and to expand the number of spaces available for valet parking in the Old
Garage; and
WHEREAS, COUNTY and CRE LOR, successor in interest, entered into a Second
Amendment to Agreement (the "Second Amendment") between Broward County and Las
Olas Riverfront Associates Limited Partnership, successor to Historic Brickell Ltd., for Use
of Broward County Governmental Center Garage for Parking by General Public, dated
November 19, 2002, to permit the replacement of Regal Cinemas with Sunrise Cinemas
and to renew for an additional five (5) year term (the Original Agreement as amended by
the First Amendment and Second Amendment is hereinafter referred to the "Agreement");
and
WHEREAS, in the event the renewal provision is not exercised the agreement
between the parties shall revert to the Original Agreement; and
WHEREAS, COUNTY and CRE LOR want to amend the Agreement to remove
Section 3b, to remove the first paragraph of Section 3 and to renew for an additional five
(5) year term. In addition, COUNTY and CRE LOR want to amend the Agreement to add
Sections 8, 9, 10, 11, 12 and 13 for Indemnification, Insurance, Termination, Third-Party
Beneficiaries, Notices, and Conflicts sections respectively; and
WHEREAS, the Board of County Commissioners finds it to be in the public interest
to enter into this Third Amendment; NOW, THEREFORE,
THE PARTIES agree to revise the Agreement by entering into this Third
Amendment to the Agreement, as follows:
1. This amendment is effective on the date of execution by both parties.
2. All remaining terms and conditions of the Agreement not inconsistent herewith
remain in full force and effect.
3. Pursuant to Section 6 of the Second Amendment the parties wish to exercise their
Option to Renew for an additional five (5) year term that shall commence on July
21,2010, through July 20, 2015.
4. Section 3 of the Agreement is hereby amended by deleting (strike tRrougR) the
following:
- 2-
Exhibit 2
Page 4 of 11
3. Las Olas Riverfront Obligations.
a. LOR acknowledges that it is the successor in interest to Brickell and it has
assumed all of the obligations of Brickell under the Agreement.
b. LOR shall proviae ana keep in forGe a Gomprehensive general liaBility ana
property aamage insuranGe poliGy for the use of the Ola Garage By LOR pursuant
to this Agreement. SUGh insuranGe policy shall Be not less that $500,000 GomBinea
single limit insuring COUNTY against pUBIiG liaBility ana property aamage arising
from an OGGurrenGe in the 'Jalet parking use of the Ola Garage By LOR or its
agents. LOR shall fumish COUNTY with an appropriate GertifiGate from the
insuranGe Garrier shOY/ing SUGh insurance to Be in forGe auring the terFR hereof.
The pUBIiG liaBility policy FRaintainea BY LOR shall naFRe COUNTY as an aaaitional
insurea.
c. LOR shall pay the COUNTY a fee equal to $900 per month as their share of the
contract costs for maintenance and security for the Old Garage, payable on the
first day of each month commencing with the first month following the effective
date of this Amendment. The fee shall be increased annually on the first day of
January, commencing January 1, 2001, by an amount equal to the greater of four
percent (4%) or the percentage increase in the Consumer Price Index for All Urban
Consumers (CPI-U) for Miami-Fort Lauderdale for All Items, 1982-84=100,
published by the United States Department of Labor, Bureau of Labor Statistics for
the most recent past calendar year.
d. LOR shall reimBurse the COUNTY fifty perGent (50%) of the actual, airect GOst
(inGluaing installation Gost) of gate(s) ana relatea equipment for Gontrolling aGcess
to the Ola Garage, '....hiGh aFRount shall not e*Geea $10,000. Payment shall Be
FRaae By LOR '....ithin thirty (30) aays after reGeipt of the COUNTY's invoice setting
forth the actual GOSt.
LOR agrees to inaeFRnify, aefena in its own naFRe at LOR's Gost ana e*pense,
save ana hola haFFRless COUNTY, its COFRFRissioners, offiGers ana eFRployees
froFR ana against all GlaiFRs, aeFRanas, aGtions, liaBilities, aaFRages, juagFRents,
Gosts ana e*penses or personal iRjuries or property aamage arising out of the use
of the Parking Garage BY or on Behalf of LOR pursuant to this AgreeFRent. The
OBligation of LOR to inaeFRnify COUNTY hereunaer shall Be Iimitea to the aFRount
of insurance Goverage speGifiea aBove, But shall apply regaraless of '....hether the
insuranGe Garrier aGGepts or aenies Goverage or reserves rights. The inaeFRnity of
LOR herein shall not apply to the ,../illful FRisGonauct or acts of COUNTY, its
offiGers, agents or eFRployees outside the SGope of eFRploYFRent.
LOR agrees to use reasonable care in the use of the
parking operations and to fully cooperate with the
guidelines. LOR shall promptly compensate COUNTY
Parking Garage arising from LOR's use thereof, payable
-3-
Old Garage in its valet
COUNTY's operational
for any damage to the
within thirty (30) days of
Exhibit 2
Page 5 of 11
presentation of an invoice therefore, unless the amount of the invoice or LOR's
responsibility for such damage is disputed by LOR within such 30 day period, in
which case COUNTY, through its Contract Administrator, and LOR shall promptly
meet and attempt to resolve the dispute. In the event that the dispute cannot be
resolved within thirty (30) days the invoice shall be payable.
5. Section 8 is hereby added to the Agreement as follows:
8. INDEMNIFICATION
CRE LOR shall at all times hereafter indemnify, hold harmless and, at the
County Attorney's option, defend or pay for an attorney selected by the County
Attorney to defend COUNTY, its officers, agents, servants, and employees from
and against any and all causes of action, demands, claims, losses, liabilities
and expenditures of any kind, including attorney fees, court costs, and
expenses, caused or alleged to be caused by intentional or negligent act of, or
omission of, CRE LOR, its employees, agents, servants, or officers, or
accruing, resulting from, or related to the subject matter of this Agreement
including, without limitation, any and all claims, losses, liabilities, expenditures,
demands or causes of action of any nature whatsoever resulting from injuries or
damages sustained by any person or property. In the event any lawsuit or other
proceeding is brought against COUNTY by reason of any such claim, cause of
action or demand, CRE LOR shall, upon written notice from COUNTY, resist
and defend such lawsuit or proceeding by counsel satisfactory to COUNTY. or,
at COUNTY's option, pay for an attorney selected by County Attorney to defend
COUNTY. The provisions and obligations of this section shall survive the
expiration or earlier termination of this Agreement. To the extent considered
necessary by the Contract Administrator and the County Attorney, any sums
due CRE LOR under this Agreement may be retained by COUNTY until all of
COUNTY's claims for indemnification pursuant to this Agreement have been
settled or otherwise resolved; and any amount withheld shall not be subject to
payment of interest by COUNTY.
6. Section 9 is hereby added to the Agreement as follows:
9. INSURANCE
CRE LOR shall provide at its own expense and keep in continuous force and
effect commercial general public liability insurance with minimum limits of FIVE
MILLION Dollars ($5,000,000.00) per occurrence combined single limit and
business automobile liability insurance for all vehicles in CRE LOR's name
(including owned leased and hired vehicles) with minimum limits of ONE
MILLION Dollars ($1,000,000.00) per occurrence combined single limit for
Bodily Injury Liability and Property Damage Liability. Coverage must be
afforded on a form no more restrictive than the latest edition of the Business
Automobile Policy, without restrictive endorsements, as filed by the Insurance
-4-
Exhibit 2
Page 6 of 11
Services Office. In addition, CRE LOR shall provide, at its own expense,
Worker's Compensation and Employer Liability Coverage required to comply
with Chapter 440, Florida Statutes. The aforesaid minimum limits of insurance
shall be reviewed from time to time by COUNTY and may be adjusted if
COUNTY determines that such adjustments are necessary to protect
COUNTY'S interest.
The commercial general liability insurance policy shall, at CRE LOR'S sole
expense, be written so as to protect both COUNTY as an additional insured
and CRE LOR. CRE LOR shall furnish COUNTY with insurance certificates to
demonstrate the continuous coverage required by this Section, and CRE LOR
shall be responsible for assuring that such insurance certificates remain in force
for the duration of the Lease Term. CRE LOR shall provide evidence of the
required coverages herein, by presentation of certificates or other evidence of
insurance prior to the execution of this Lease.
Certificates of Insurance: CRE LOR agrees to provide COUNTY a Certificate(s)
of Insurance evidencing that all coverages, limits and endorsements required
herein are maintained and in full force and effect. Said Certificate of Insurance
shall include a minimum of thirty (30) days endeavor to notify the COUNTY due
to cancellation or nonrenewal of coverage. CRE LOR shall deliver to COUNTY
certificates of insurance for renewal or expiring policies at least thirty (30)
calendar days in advance of any renewal, expiration or anniversary date. The
insurance shall be written by companies authorized to do business in the State
of Florida and having agents upon whom service of process may be made in
the state of Florida or by insurers known to do business in the state.
7. Section 10 is hereby added to the Agreement as follows:
10.
TERMINATION
a. This Agreement or any amendment thereof may be terminated
for cause by the aggrieved party if the party in breach has not corrected
the breach within thirty (30) days after written notice from the aggrieved
party identifying the breach. This Agreement or any amendment thereof
may also be terminated for convenience by the Board. Termination for
convenience by the Board shall be effective on the termination date
stated in written notice provided by the COUNTY, which termination date
shall be not less than thirty (30) days after the date of such written notice.
This Agreement or any amendment thereof may also be terminated by
the County Administrator upon such notice as the County Administrator
deems appropriate under the circumstances in the event the County
Administrator determines that termination is necessary to protect the
public health or safety. The parties agree that if the COUNTY
erroneously, improperly or unjustifiably terminates for cause, such
termination shall be deemed a termination for convenience, which shall
be effective thirty (30) days after such notice of termination for cause is
provided.
- 5-
Exhibit 2
Page 7 of 11
b. This Agreement or any amendment thereof may be terminated
for cause for reasons including, but not limited to, CRE LOR's repeated
(whether negligent or intentional) submission for payment of false or
incorrect bills or invoices, failure to suitably perform the work; or failure to
continuously perform the work in a manner calculated to meet or
accomplish the objectives as set forth in this Agreement.
c.
Notice of termination shall be provided in accordance with the
"NOTICES" section of this Agreement except that notice of termination by
the County Administrator, which the County Administrator deems
necessary to protect the public health, safety, or welfare may be verbal
notice that shall be promptly confirmed in writing in accordance with the
"NOTICES" section of this Agreement.
d. In the event this Agreement or any amendment thereof is
terminated for convenience, COUNTY shall be paid for any fees due by
CRE LOR for its share of maintenance and security costs under the
Agreement through the termination date specified in the written notice of
termination, less any amounts that are properly due to CRE LOR.
COUNTY acknowledges and agrees that it has received the fees and
sufficient consideration from CRE LOR, the receipt and adequacy of
which are, hereby acknowledged by COUNTY, for COUNTY's right to
terminate this Agreement for convenience.
8. Section 11 is hereby added to the Agreement as follows:
11. THIRD PARTY BENEFICIARIES
Neither CRE LOR nor COUNTY intends to directly or substantially benefit
a third party by this Agreement. Therefore, the parties agree that there are
no third party beneficiaries to this Agreement and that no third party shall
be entitled to assert a right or claim against either of them based upon this
Agreement.
9. Section 12 is hereby added to the Agreement as follows:
12. NOTICES
Whenever either party desires to give notice to the other, such notice must
be in writing, sent by certified United States Mail, postage prepaid, return
receipt requested, or sent by commercial express carrier with
acknowledgement of delivery, or by hand delivery with a request for a
written receipt of acknowledgment of delivery, addressed to the party for
whom it is intended at the place last specified. The place for giving notice
shall remain the same as set forth herein until changed in writing in the
manner provided in this section. For the present, the parties designate the
following as the respective places for giving of notice:
FOR COUNTY:
Mr. Scott Campbell, Contract Administrator
-6-
Exhibit 2
Page 8 of 11
Facilities Maintenance Director
115 South Andrews Ave, Room 501
Fort Lauderdale, FL 33301
(954) 357-5500
FOR CRE LAS OLAS RIVERFRONT LLC:
Jeffrey J. Ramos, CEO
Momentis Property Group
11900 Biscayne Blvd, Ste 801
Miami, FL 33181
(786) 523-0375
10. Section 13 is hereby added to the Agreement as follows:
13. CONFLICTS
Neither eRE LOR nor its employees shall have or hold any continuing or
frequently recurring employment or contractual relationship that is
substantially antagonistic or incompatible with CRE LOR's loyal and
conscientious exercise of judgment and care related to its performance
under this Agreement.
CRE LOR further agrees that none of its officers or employees shall, during
the term of this Agreement, serve as an expert witness against COUNTY in
any legal or administrative proceeding in which he, she, or CRE LOR is not
a party, unless compelled by court process. Further, CRE LOR agrees that
such persons shall not give sworn testimony or issue a report or writing, as
an expression of his or her expert opinion, which is adverse or prejudicial to
the interests of COUNTY in connection with any such pending or threatened
legal or administrative proceeding unless compelled by court process. The
limitations of this section shall not preclude CRE LOR or any persons in any
way from representing themselves, including giving expert testimony in
support thereof, in any action or in any administrative or legal proceeding.
In the event CRE LOR is permitted pursuant to this Agreement to utilize
subcontractors to perform any services required by this Agreement, CRE
LOR agrees to require such subcontractors, by written contract, to comply
with the provisions of this section to the same extent as CRE LOR.
11. In the event of a conflict between the First Amendment, Second Amendment,
Third Amendment and the Original Agreement the language of the Third
Amendment shall control.
-7-
Exhibit 2
Page 9 of 11
12. The Agreement, as amended, is hereby ratified and confirmed.
[Remainder of this page intentionally left blank.]
- 8-
Exhibit 2
Page 10 of 11
Exhibit 2
Page 11 of 11
THIRD AMENDMENT TO AGREEMENT BETWEEN BROWARD COUNTY AND CRE
lAS OlAS RIVERFRONT , llC, SUCCESSOR TO lAS OlAS RIVERFRONT
ASSOCIATES LIMITED PARTNERSHIP, SUCCESSOR TO HISTORIC BRICKEll lTD. ,
FOR USE OF BROWARD COUNTY GOVERNMENTAL CENTER GARAGE FOR
PARKING BY GENERAL PUBLIC .
CRE lAS OlAS RIVERFRONT, llC
Name: Jeffrey J. Ramos
Title:
Authorized Representative
~ day of ULJ.-~
- 10-
,2010