Loading...
HomeMy WebLinkAboutR-2015-017 Authorizes execution of agreement with N & S Properties LLC for property at 48 South Federal Highway, relating to City Hall parking garage spaces to be used by the proposed Morrison Hotel RESOLUTION NO. 2015-017 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE AN AGREEMENT WITH PROPERTY OWNER, N & S PROPERTIES LLC, THE OWNER OF PROPERTY LOCATED AT 48 SOUTH FEDERAL HIGHWAY, RELATING TO PARKING SPACES LOCATED IN THE CITY HALL PARKING GARAGE TO BE USED IN CONNECTION WITH THE OPERATION OF A PROPOSED HOTEL TO BE KNOWN AS THE MORRISON HOTEL IN THE CITY OF DANIA BEACH; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the proper City officials are authorized to execute an Agreement with property owner, N & S Properties, LLC, the owner of property located at 48 South Federal Highway, relating to parking spaces located in the City Hall Parking Garage to be used in connection with the operation of a proposed hotel to be known as the Morrison Hotel in the City of Dania Beach; a copy of the Agreement is attached as Exhibit"A", and it is made a part of and incorporated into this Resolution by this reference. Section 2. That the City Manager and City Attorney are authorized to make minor revisions to the Agreement as are deemed necessary and proper for the best interests of the City. Section 3. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 4. That this Resolution shall be in full force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED on Februar 10, 2015. Alp"5 FIST ATTEST: � _ oiry LOUISE STILSON, CMC SALVINO, SR. CITY CLERK AYOR 1 APPROVED TO RM AND CORRE r TH MAS . AN BRO CITY ATTORNEY AGREEMENT FOR PARKING LICENSE AND ROADWAY EASEMENT THIS AGREEMENT FOR PARKING LICENSE AND ROADWAY EASEMENT ("Agreement") is made as of , 2015, between the CITY OF DANIA BEACH, a Florida municipal corporation, having an address at 100 West Dania Beach Boulevard, Dania Beach, Florida 33004 ("City") and N&S PROPERTIES, LLC, a Florida limited liability company, having an address at 2201 North Commerce Parkway, Weston, Florida ("Developer"). RECITALS: City is the owner of a municipal parking garage with a street address of 49 Park Avenue East, Dania Beach, Florida("Garage"). Developer is the owner of(i) a parcel of vacant land located in Dania Beach, Florida and more particularly described in Exhibit A attached to and made a part of this Agreement ("Hotel Parcel"), and (ii) a parcel of vacant land located in Dania Beach, Florida and more particularly described in Exhibit B attached to and made a part of this Agreement ("Road Parcel"). Developer intends to develop a hotel ("Hotel") on the Hotel Parcel, and wishes to obtain additional parking to serve the Hotel Parcel. City has excess parking available in the Garage, but wishes to improve access to the Garage from South Federal Highway located to the east of the Garage. The Road Parcel is located between the Garage and South Federal Highway, and will be used by the Developer as a roadway to provide access, ingress and egress between the Hotel, South Federal Highway, and Park Avenue East City is willing to license to Developer the exclusive use of 84 covered parking spaces (each, a"Parking Space"and collectively the"Parking Spaces") in the Garage on the terms and conditions set forth in this Agreement. Developer is willing to grant to the City a non-exclusive easement over and across the Road Parcel for roadway purposes on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties hereby agree as follows: Recitals. The forgoing Recitals are true and correct and are incorporated into and form part of this Agreement. I. Exhibits. The following Exhibits are attached to and made a part of this Agreement: Exhibit A—Legal Description of the Hotel Property Exhibit B—Legal Description of the Roadway Parcel Exhibit C—Floor Plan of Third Floor of Parking Garage Exhibit D—Sample Calculation of CPI Increase Exhibit E —Roadway Easement 2. Defined Terms. Terms used in this Agreement are defined in the sections where they are first used. The following terms appear throughout this Agreement and have the meanings set forth below. 2.1. Attorneys' Fees. All reasonable attorneys' fees, expenses, and costs incurred by a parry in connection with any matter arising under this Agreement, including, without limitation, paralegal fees, in-house attorneys' fees, and all fees, taxes, costs and expenses incident to trial, appellate, bankruptcy and post judgment proceedings. 2.2. Governmental Authority. Any federal, state, county, municipal or other governmental department, entity, authority, commission board, bureau, court, agency, or any instrumentality of any of them. 2.3. Governmental Approval. Any license, permit, certificate, consent, authorization, or other document issued by a Governmental Authority. 2.4. Governmental Requirement. Any law, enactment, statute, code, ordinance, rule, regulation, judgment, decree, writ, injunction, order, permit, certificate, license, authorization, agreement, or other direction or requirement of any Governmental Authority now existing or hereafter enacted, adopted, promulgated, entered, or issued. 3. License. City hereby grants to Developer, and Developer hereby accepts from City, a revocable license ("License") to use and occupy 84 Parking Spaces located on the third floor of the Parking Garage. A copy of the floor plan for the third floor of the Garage is attached as Exhibit C. The exact location of the Parking Spaces will be identified by the City after the issuance of a building permit for the Hotel. The Parking Spaces will be contiguous to each other. 3.1. City's Right to Relocate Spaces. Developer acknowledges that the fourth floor of the Garage is currently the top floor of the garage. If City adds any additional floors to the Garage during the term of this Agreement, City will have the right to relocate Developer's Parking Spaces to another covered floor of the Garage. 2 3.2. Ingress and Egress. The License includes the right of ingress and egress through the Garage to the Parking Spaces. 4. License Term and Renewals. The initial term ("Initial Term") of the License will commence on the date that the Hotel to be constructed by the Developer on the Hotel Parcel opens for business ("Commencement Date") and terminate 10 years thereafter. The Initial Term of the License may be renewed by Developer for two additional 10-year periods (each, a "Renewal Term;" the Initial Term and any Renewal Terms are collectively the "License Term"). 4.1. Renewal Option. Developer has the right to renew the License for each Renewal Term by giving City written notice of its election to renew not less than 90 days before the end of the Initial Term or the Renewal Term then in effect. 5. License Fee. Developer shall pay the following fees and charges for the License: 5.1. Calculation of License Fee for Initial Term. During the Initial Term, Developer shall pay City a fee ("License Fee") of $45.00 per month for each of the 84 Parking Spaces. 5.2. Payment of License Fee during Initial Term. The License Fee for the first six months of the Initial Term ($22,680.00) is waived. Beginning six months after the Commencement Date, the License Fee shall be payable in quarterly installments of$11,340.00 due and payable in advance on the first day of January, April, July and October of each year during the Initial Term. The payments for the first and last quarters of the Initial Term will be prorated or adjusted, as appropriate, with the end result that City receives a License Fee of$3780.00 per month during the Initial Term, less the waived License Fee for the first six months of the Initial Term. 5.3. License Fee Increase During Renewal Terms. For each Renewal Term, the License Fee will increase by the greater of(i) 20%, or (ii) the percentage increase ("Percentage Increase") in the "Consumer Price Index for All Urban Consumers (CPI-U), U. S. City Average-All Items (1982-1984=100)", published by the Bureau of Labor Statistics of the United States Department of Labor" ("CPI"). 5.3.1. Calculation of Percentage Increase. The Percentage Increase will be determined by multiplying the License Fee currently in effect by a fraction, the numerator of which is the CPI for the third month prior to the commencement of a Renewal Term, and the denominator of which is the CPI for the third month prior to the commencement of the Initial Term or Renewal Term about to end. An example of the calculation is attached as Exhibit D. If the Percentage Increase is greater than 20%, then the License Fee in effect prior to the renewal multiplied by the Percentage Increase will be the License Fee in effect for the Renewal Term about to begin; otherwise, the License Fee will increase by 20%. 3 5.3.2. Substitution for CPI. If the CPI ceases to be published, the parties will substitute for the CPI a price index (or combination of indices, with such adjustments as may be required to afford compatibility), published by the Bureau of Labor Statistics or its successor government agency, which is intended to be representative of substantially similar changes in the cost of living. 5.4. Nonpayment of License Fee. Developer's failure to pay any installment of the License Fee within 10 days after the due date will be a default under this Agreement. Any sums not paid within 10 days after the due date will accrue interest at the rate of 12% per annum from due date until paid in full. In addition, any License Fee not paid within 10 days after the due date will be subject to a late payment fee in the amount of 5% of the past due payment. 6. Use. Developer shall use the Parking Spaces exclusively for passenger vehicle parking for Hotel guests, visitors and employees, and for no other use or purpose whatsoever. Developer shall use the Parking Spaces in compliance with all Governmental Requirements. Developer will not be permitted to charge any rent or fees for the use of the Parking Spaces without the prior written consent of City. Charges for Hotel services such as valet parking will not be considered rent or fees for the use of the Parking Spaces. 7. City's Right of Access. City and its agents and representatives will have the right to enter upon the Parking Spaces at all times, but will not have the right to enter into vehicles parked in the Parking Spaces except in cases of emergency. 8. Condition of Parking Spaces. Developer represents that it has made a thorough inspection of the Parking Spaces and accepts them in "as is," "where is" condition as of the date of this Agreement. City has no obligation to perform any work on the Parking Spaces or in the Garage to prepare the same for Developer's use. City will not be responsible for any latent or obvious defects in the Parking Spaces or the Garage. 9. Access to and Identification of Parking Spaces. Not less than six months prior to the anticipated Commencement Date, Developer and City shall jointly develop a plan for (i) the procedure by which Hotel guests will obtain access to the Parking Spaces (for example, by card key, or ticket validation, or other access device) and (ii) the manner in which the Parking Spaces will be identified (for example, wall signage for each Parking Space, labeling of wheel stops, or other means of identification.) Developer will be responsible for all costs and expenses of implementing the access and identification procedures once they have been agreed to in writing by City. The installation and operation of all access and identification facilities, devices or improvements ("Access and Identification Improvements") must be in accordance with all applicable Governmental Requirements. 10. Alterations. Developer shall not make any alterations or improvements to the Parking Spaces or the Garage other than the Access and Identification Improvements without obtaining City's prior written consent, which may be withheld in City's sole discretion. If 4 any mechanic's lien is filed against the Garage or the Parking Spaces for work claimed to have been done for, or materials furnished to, Developer (including work or materials which are part of the Access and Identification Improvements), Developer must discharge the lien or transfer it to bond at Developer's sole cost and expense within 10 days after Developer receives notice of the lien. 11. Services, Utilities and Security. City is not obligated to furnish any services, utilities, or security for the Parking Spaces other than (i) the existing lighting, exhaust, and sprinkler systems located in the Garage on the date of this Agreement, as same may change from time to time; (ii) the same cleaning services that are provided for the balance of the Garage from time to time; and (iii) the same security services (if any) provided for the balance of the Garage from time to time. City has no affirmative obligation to provide any security services in the Garage at any time. City will not be liable to Developer or its agents, contractors, subcontractors, servants, employees, tenants, residents, visitors, or invitees (collectively, "Developer Parties") for any claims arising out of (i) any impediment to access or use of the Parking Spaces, or (ii) any loss, disruption, or alleged inadequacy or deficiency in any utility, system, or service provided in the Garage; or (iii) any damage, injury or theft to any vehicle or individual using the Garage. 11.1. Additional Security. If Developer wishes to provide additional security for the Parking Spaces, Developer shall send written notice to City advising City of the additional security to be provided. Any additional security requiring alterations or improvements to the Parking Garage will be subject to the City's prior written consent, which may be withheld or conditioned at City sole discretion 12. Insurance. 12.1. Required Coverage. Beginning on the Commencement Date, and throughout the License Term, Developer shall maintain the following insurance: 12.1.1. Commercial General Liability. Commercial General Liability Insurance naming the City as an Additional Insured, written on a carrier licensed to do business in Florida with an AM Best rating of A- or better. Coverage must include, at a minimum: (i) Premises Operations, (ii) Products and Completed Operations, (iii) Blanket Contractual Liability, (iv) Personal Injury Liability, and (v) Expanded Definition of Property Damage. The minimum limits acceptable are $1,000,000 Per Occurrence, $2,000,000 Per Location Aggregate. The use of an excess/umbrella liability policy to achieve the limits required by this paragraph will be acceptable as long as the terms and conditions of the excess/umbrella policy are no less restrictive than the underlying Commercial General Liability policy. 12.1.2. Business Automobile Liability Insurance. Business Automobile Liability Insurance naming the City as an Additional Insured, with coverage extending to all Owned, Non-Owned and Hired autos. The minimum limits acceptable are $1,000,000 Per Occurrence. The use of an 5 excess/umbrella liability policy to achieve the limits required by this paragraph will be acceptable as long as the terms and conditions of the excess/umbrella policy are no less restrictive than the underlying Business Automobile Liability policy. 12.1.3. Workers' Compensation and Employers' Liability Insurance. Workers' Compensation Insurance with limits sufficient to comply with Florida Statute §440 for all Hotel personnel on City premises (including valet personnel parking in Garage). In addition, Developer shall obtain and maintain Employers' Liability Insurance with limits of not less than: (i) $100,000 Bodily Injury by Accident, (ii) $500,000 Bodily Injury by Disease and(iii) $100,000 Bodily Injury by Disease, each employee. 12.1.4. Adequacy of Insurance Coverage. City has the right to periodically review the adequacy of the insurance coverage required by this Agreement. The City may request a change in the insurance coverage if the requested change is reasonable, customary, and commonly available for properties similar to the Hotel in type, size, use and location. 12.2. Evidence of Insurance. Developer must provide satisfactory evidence of the required insurance to the City. Satisfactory evidence of insurance is either: (i) a certificate of insurance; or(ii) a certified copy of the actual insurance policy 12.3. Cancellations and Renewals. All insurance policies must specify that they are not subject to cancellation or non-renewal without a minimum of 45 days notification to the Developer; and a minimum of 10 days notification for non- payment of premium. The Developer will provide the City a minimum of 30 days written notice if any policies are cancelled or non-renewed, and 10 days written notice for non-payment of premium. 13. Damage, Destruction or Taking of Parking Garage. 13.1. Casualty or Taking. If there is a casualty ("Casualty") which causes damage to portions of the Garage where the Parking Spaces are located, but leaves other portions of the Garage in usable condition, City will have the right to relocate the Parking Spaces to a usable location in the Garage, and this Agreement will remain in full force and effect. If there is a taking by condemnation ("Taking") of a portion of the Garage where the Parking Spaces are located, but the Taking leaves other portions of the Garage in usable condition, City will have the right to relocate the Parking Spaces to a usable location in the Garage, and this Agreement will remain in full force and effect. 13.2. Major Casualty or Taking. If there is (i) a major Casualty to the Garage or its entrance; (ii) a Taking by condemnation of a material portion of the Garage; or (iii) a substantial deterioration of the structural integrity of the Garage over time; 6 so that the Garage is not usable for parking, the City will have the following options, any one of which may be exercised by City in its sole discretion: 13.2.1. City May Elect Not to Rebuild. City may elect not to rebuild the Garage, in which event City shall provide Developer with written notice of City's election not to rebuild the Garage, and of termination of License. This Agreement and all rights and obligations hereunder will terminate 10 days after the notice of termination is sent by City, and City will refund to Developer any unearned portion of the current month's License Fee. 13.2.2. City May Elect to Rebuild. City may elect to rebuild the Garage, in which event City shall provide Developer with written notice of City's election to rebuild. If City elects to rebuild the Garage, Developer will elect one of the following options: (a) This Agreement and the License will remain in effect, but the License will be suspended until the Garage is rebuilt; (b) Developer may elect to terminate this Agreement and all rights and obligations hereunder by sending written notice of termination to the City within 10 days after receipt of notice of City's election to rebuild. City will refund to Developer any unearned portion of the current month's License Fee. (c) If the City, at its option, offers to provide Developer with parking spaces ("Replacement Spaces") in an alternate location, and if the alternate location is acceptable to Developer, then this Agreement and the License will remain in full force and effect. Upon substitution of the Parking Spaces with the Replacement Spaces, the Replacement Spaces will be deemed to be the Parking Spaces and will be subject to the terms and conditions of this Agreement. City and Developer will enter into an amendment of this Agreement within 30 days after request by the City confirming the change of the Parking Spaces to the Replacement Spaces. 14. Grant of Roadway Easement. As additional consideration for the License granted by this Agreement, Developer agrees to grant to City a non-exclusive easement over and across the Road Parcel for vehicular and pedestrian ingress, egress, and access between the Garage and South Federal Highway ("Easement"). The Easement shall be granted to the City by a "Roadway Easement Agreement" in the form attached as Exhibit E to this Agreement, which Grant of Easement shall be recorded by Developer in the Public Records of Broward County, Florida within 10 days after the Commencement Date. The terms and conditions of the Easement are as follows: 14.1. Duration of Easement. The term of the Easement will be coterminous with the License Term. The Easement will remain in full force and effect until the earlier of (i) expiration of the License Term; or (ii) termination of the License in accordance with the terms of this Agreement. 14.2. Construction and Maintenance of Roadway on Road Parcel. Developer will be responsible for construction of a paved roadway ("Roadway") on the Road Parcel. The Roadway will be of a quality, material, color and design that matches the roadway currently existing around the fountain in front of the Dania Beach City Hall. Developer will construct the Roadway in accordance with all City specifications and Governmental Requirements, and will be responsible for the ongoing maintenance, repair and replacement of the Roadway in accordance with all Governmental Requirements. Developer will pay all costs of construction of the Roadway, and all costs of maintenance, repair and replacement of the Roadway. 14.3. Use of Easement by the Public. The Roadway will at all times be a private road owned by the Developer. However, during the term of the Easement, the Easement may be used by the public for vehicular and pedestrian ingress, egress, and access between the Garage and South Federal Highway. 14.4. Evidence of Title. At least 30 days prior to the Commencement Date, Developer shall deliver to City either(i) an owner's title insurance policy or(ii) an opinion of title from an attorney licensed to practice in Florida showing that Developer holds fee simple title to the Road Parcel free and clear of any liens or encumbrances which might interfere with City's right to use of the Roadway. 15. Indemnification. 15.1. Developer's Obligation to Defend. Developer shall defend, indemnify and save harmless City, its council members, officers, employees, agents and contractors from and against all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including, without limitation, Attorneys' Fees (including those resulting from the enforcement of the foregoing indemnification), arising from, or which may be imposed upon, incurred by or asserted against City, by reason of: 15.1.1. Any work or activity done in, on or about the Parking Spaces, or the use thereof by or on behalf of Developer or any employee, agent, or representative of Developer("Developer Party"); 15.1.2. Any act, omission or negligence of Developer or any Developer Party; 15.1.3. Any accident, injury or damage whatsoever caused to any person or to the property of any person occurring in, on or about the Parking Spaces or occurring outside the Parking Spaces but within the Garage; 8 15.1.4. Any accident, injury or damage whatsoever caused to any person or to the property of any person occurring on or about the Roadway which is the result of the act, omission or negligence of Developer or any Developer Party; 15.1.5. Any failure on the part of Developer or any Developer Party to observe or perform any of the covenants, agreements, terms, provisions, conditions or limitations contained in this Agreement to be observed or performed by Developer, including compliance with any Governmental Requirements applicable to the Garage, the Parking Spaces, or the Roadway. 15.2. Legal Action. If any action or proceeding is brought against City, its council members, officers, employees, agents and contractors by reason of any claim arising out of a matter set forth in this Section 16, then upon written notice from City, Developer shall, at Developer's sole cost and expense, resist or defend such action or proceeding by counsel of Developer's choice, which counsel shall be subject to City's prior written approval (such approval not to be unreasonably withheld, conditioned or delayed). 15.3. Limitation. The indemnification set forth in this Section 16 will not apply to any damages resulting from the sole negligence or willful misconduct of City or its council members, officers, employees, agents and contractors. 15.4. Survival. The provisions of this Section 16 will survive the termination of this Agreement. 16. End of License Term. 16.1. Termination of Agreement, License and Easement. This Agreement, the License, the Easement, and all rights of Developer and City under this Agreement will terminate upon occurrence of any of the following: 16.1.1. Expiration of the License Term; or 16.1.2. Termination of the License after a default, major Casualty, material Taking, or other occurrence under this Agreement which entitles either the City or the Developer to terminate the License. 16.2. Developer to Vacate Parking Spaces. Upon the termination of this Agreement for any of the reasons set forth in this Section 16, Developer and all Developer Parties shall promptly vacate the Parking Spaces and remove from the Parking Spaces any personal property belonging to Developer or any Developer Parties. Developer shall leave the Parking Spaces broom clean and in the same condition existing on the date of this Agreement, subject to any damage resulting from a casualty not caused by Developer or any Developer Parties 9 16.3. City to Vacate Easement. Upon termination of this Agreement for any of the reasons set forth in this Section 16, the Easement shall terminate, and the Roadway will thereafter be closed to the public. Upon termination of the Agreement, City agrees to execute and deliver to Developer a recordable form of termination of the Easement. 16.4. Hotel Operation. Upon the termination or expiration of this Agreement for any reason, Developer will have a period of six months after the date of the termination or expiration to provide any additional parking that may be required by applicable Governmental Requirements at the time of termination or expiration. 16.5. Survival. The provisions of this Section 16 shall survive the termination of this Agreement. 17. No Assignment or Sub-License. Developer shall not assign, transfer, sub-license or otherwise hypothecate, pledge, or encumber this Agreement or Developer's rights under this Agreement, nor shall Developer permit or suffer any person or entity other than Hotel guests to use or occupy all or any part of the Parking Spaces without City's prior written consent, which consent may be withheld in City's sole discretion. 18. Default and Remedies. If Developer fails to fulfill any obligation or covenant set forth in this Agreement, City will be entitled to exercise any or all remedies available under this Agreement, or at law or in equity. In addition, City may immediately revoke the License granted by this Agreement. If City fails to fulfill any obligation or covenant set forth in this Agreement, Developer will be entitled to exercise any or all remedies available under this Agreement, or at law or in equity. 19. Notices. All notices, demands, requests and other communications required under this Agreement must be given in writing and may be delivered by (i) hand delivery, with a receipt issued by the parry making such delivery; (ii) certified mail, return receipt requested, or (iii) a nationally recognized overnight delivery service which provides delivery confirmation. Notice will be deemed to have been given upon receipt or refusal of delivery. All notices, demands, requests and other communications required under this Agreement may be sent by facsimile or electronic mail provided that the facsimile or electronic communication is followed up by notice given pursuant to one of the three methods in the preceding sentence. Any party may designate a change of address by written notice to the other party, received by such other party at least ten days before the change of address is to become effective. 19.1. Notice to Developer. Notice to the Developer under this Agreement must be sent to: N&S Properties, LLC 2201 North Commerce Parkway Weston, Florida 33326 10 Attention: Alvaro Correa Telephone: 954 659 8901 Facsimile: 954 659 8903 Email: newrealty@hotmail.com With a copy to: Greenspoon Marder, P.A. 200 East Broward Boulevard, Suite 1800 Fort Lauderdale, FL 33301 Attn: David Weisman Telephone: 954-343-6941 Facsimile: 954- 343-6942 Email: david.weisman@gmlaw.com 19.2. Notice to City. Notice to the City under this Agreement must be sent to: City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 Attn: City Manager Telephone: 954-924-6800 x3606 Facsimile: Email: rbaldwin@ci.dania-beach.fl.us With copies to: City Attorney City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 Attn: Tom Ansbro, Esq. Telephone: (954) 924-6800 x 3635 Facsimile: Email: tansbro@ci.dania-beach.fl.us and City of Dania Beach CRA 100 West Dania Beach Boulevard Dania Beach, Florida 33004 Attn: Jeremy Earle, ASLA, AICP, Executive Director Telephone: (954) 924-6801 Email:jearle@ci.dania-beach.fl.us 20. No Estate Conveyed by License. This Agreement does not and shall not be deemed to: (i) constitute a lease or a conveyance of real or personal property by City to Developer; or 11 (ii) confer upon Developer any right, title, estate or interest in the Parking Spaces or the Garage. This Agreement grants to Developer only a personal privilege to use and occupy the Parking Spaces for the License Term, revocable on the terms set forth herein. 21. Miscellaneous Provisions. 21.1. Amendments. No amendment to this Agreement will be binding on any parry unless in writing and signed by all parties. 21.2. Attorneys' Fees. In the event either party to the Agreement institutes legal proceedings in connection with the Agreement, the prevailing party will be entitled to recover all reasonable attorneys' fees and expenses and court costs, including, without limitation, all in-house attorneys' fees, and all fees, taxes, costs and expenses incident to trial, appellate, bankruptcy and post judgment proceedings. 21.3. Authority. Developer represents that it has full right, power and authority to enter into this Agreement and to perform its obligations and agreements hereunder, and that the person or persons executing this Agreement on behalf of Developer are duly authorized to do so. 21.4. Conflicts of Interest; City Representatives not Individually Liable. No elected official, representative, or employee of the City has any personal interest, direct or indirect, in this Agreement. No elected official, representative or employee will participate in any decision relating to this Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which he or she has an interest, directly or indirectly. No elected official, representative or employee of the City will be personally liable to Developer or any successor in interest for any amount which may become due to Developer for any obligations of City under this Agreement, or in the event of any default or breach by the City. 21.5. Counterparts. This Agreement may be signed in counterparts, each one of which is considered an original, but all of which constitute one and the same instrument. This Agreement is effective only after execution and delivery by the parties. . 21.6. Entire Agreement. This Agreement and the exhibits constitute the sole agreement of the parties with respect to its subject matter. Any prior written or oral agreements, promises, negotiations, representations or communications not expressly set forth in this Agreement are of no force or effect. 21.7. Governing Law. This Agreement shall be construed in accordance with, and governed by the laws of,the State of Florida. 22. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, 12 PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO (a) THIS AGREEMENT, INCLUDING ANY EXHIBITS, OR SCHEDULES ATTACHED TO THIS AGREEMENT; (b) ANY OTHER DOCUMENT OR INSTRUMENT NOW OR HEREAFTER EXECUTED AND DELIVERED IN CONNECTION WITH THIS AGREEMENT; OR (c) THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THIS WAIVER SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the day and year first above written. [SIGNATURES ON FOLLOWING PAGES] 13 CITY OF DANIA BEACH, a Florida municipal corporation By: Marco A. Salvino, Sr., Mayor By: Robert Baldwin, City Manager ATTEST: By: Louise Stilson, CMC, City Clerk APPROVED AS TO FORM AND SUFFICIENCY FOR THE USE AND RELIANCE OF THE CITY OF DANIA BEACH ONLY: By: Thomas J. Ansbro, City Attorney STATE OF FLORIDA COUNTY OF BROWARD The foregoing instrument was acknowledged before me this day of , 2015, by Marco A. Salvino, Sr. and Robert Baldwin, as Mayor and Manager, respectively, of the City of Dania Beach, on behalf of the City. They are personally known to me or have produced as identification. [SEAL] Notary Public, State of Florida 14 DEVELOPER: N&S PROPERTIES, LLC, a Florida limited liability company By: Name: Title: STATE OF FLORIDA COUNTY OF BROWARD The foregoing instrument was acknowledged before me this day of 2015, by , as of N&S Properties, LLC, a Florida limited liability company. He is personally known to me or has produced as identification. [SEAL] Notary Public, State of Florida 15 Exhibit A Legal Description of Hotel Property Lots 11 through 16, less State Road of Lots 12, 13 and 16, Block 22, TOWN OF MODELO (now DANIA), according to the Plat thereof recorded in Plat Book B, Page 49, Public Records of Miami-Dade County, Florida, said lands situate, lying and being in Broward County, Florida. Exhibit B Legal Description of Hotel Property Lots 9 and 10, less State Road, Block 22, TOWN OF MODELO (now DANIA), according to the Plat thereof recorded in Plat Book B, Page 49, Public Records of Miami-Dade County, Florida, said lands situate, lying and being in Broward County, Florida. 16 Exhibit C Floor Plan of Third Floor of Parking Garage gig r� i S STOP 9 X z if — -n r ! I o F a x 5 --- --- --- -- - ---- ', - gg' I , a i _ I —————— ———————— ae .I dois T Ip II I I I 1 - I ;i I' D i IRAJ sYsHOJAIE DAMA BEACH CITY CENTER Na �c � Aidileq nr.Mo,�m PROPOSED CITY HALL PARKING GARAGE GARAGE N — 100 W.OANIA BEACH BLVO-OANIA BEACH,FLORIDA � 17 Exhibit D Sample CPI Calculation Consumer Price Index - All Urban Consumers Not Seasonally Adjusted Area: U.S. city average Item: All items Base Period: 1982-84=100 February 2004: 186.2 February 2014: 234.781 $45.00 tim 234.781 es 186.2 — $56.74 License Fee for Renewal Term 18 Exhibit E Roadway Easement This instrument prepared by/ Record and return to: Gail D. Serota,Esq. Weiss Serota Helfman Cole Bierman&Popok,P.L 2525 Ponce de Leon Blvd., Suite 700 Coral Gables,Florida 33134 Telephone:3 05.854.0800 Folio Number: ROADWAY EASEMENT AGREEMENT THIS ROADWAY EASEMENT AGREEMENT ("Agreement") dated as of , 2015 is made by N&S PROPERTIES, LLC, a Florida limited liability company ("Developer"), whose mailing address is 2201 North Commerce Parkway, Weston, Florida 33326, to the CITY OF DANIA BEACH, a Florida municipal corporation ("City"), whose mailing address is 100 West Dania Beach Boulevard, Dania Beach, Florida 33004. RECITALS City is the owner of a municipal parking garage with a street address of 49 Park Avenue East, Dania Beach, Florida 33004 ("Garage"). Developer is the owner of a parcel of land located in City of Dania Beach, Broward County, Florida and more particularly described in Exhibit A ("Hotel Parcel"), upon which Developer has developed a hotel ("Hotel"). Developer is also the owner of a parcel of land located in City of Dania Beach, Broward County, Florida and more particularly described in Exhibit B ("Road Parcel"), which is located between the Garage and South Federal Highway. Developer has constructed a private road ("Roadway") on the Road Parcel to provide access, ingress and egress between the Hotel, South Federal Highway, and Park Avenue East. City and Developer have entered into an Agreement for Parking License and Roadway Easement dated ("License Agreement'), in which City has given Developer a license to use 84 parking spaces in the Garage in consideration for a non-exclusive easement over and across the Road Parcel for vehicular and pedestrian ingress, egress, and access between the Garage and South Federal Highway. 19 Developer agrees to grant a non-exclusive easement to the City over and across the Road Parcel as set forth in this Agreement. AGREEMENT In consideration of the mutual promises and agreements set forth herein and in the License Agreement, and for Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows. 1. Recitals. The Recitals set forth above are correct and are made a part of this Agreement. 2. Grant of Easement. Developer hereby grants to City a non-exclusive easement ("Easement") over and across the Road Parcel for vehicular and pedestrian ingress, egress, and access between the Garage and South Federal Highway. 3. Ownership of the Road Parcel. Developer represents that it is the owner of the Road Parcel, and has full right and authority to grant the Easement without the joinder of any other party. 4. Duration of Easement. The term of the Easement will commence on the date that the Hotel has opened for business ("Commencement Date") and will be coterminous with the term of the license granted by the License Agreement ("License Term"). The Easement will remain in full force and effect until the earlier of(i) the expiration of the License Term; or (ii) termination of the License in accordance with the terms of the License Agreement. 5. Use of Roadway. The Roadway will at all times be a private road owned by the Developer. However, during the term of this Agreement, the Roadway may be used by the public for vehicular and pedestrian ingress, egress, and access between the Garage and South Federal Highway. 6. Maintenance of Roadway. Developer will be responsible for the ongoing maintenance, repair, and replacement of the Roadway in accordance with all applicable governmental requirements. Grantor will pay all costs of maintenance, repair, and replacement of the Roadway. 7. Attorneys' Fees, Costs, and Venue. In connection with any litigation arising out of this Agreement, the prevailing party is entitled to recover all costs incurred, including reasonable Attorneys' Fees. Venue for any litigation arising under this Agreement will be in Broward County, Florida. 8. Covenant Running with the Land. This Agreement is a covenant running with the land and will be binding upon Developer and City and their respective successors and assigns. 9. Recording. This Agreement will be recorded by Developer in the Public Records of Broward County, Florida within ten(10) days after the Commencement Date. This Agreement has been executed by the City and the Developer on the date set forth on the first page of this Agreement. [SIGNATURE BLOCKS ON FOLLOWING PAGES] 20 IN WITNESS WHEREOF, the Developer and City have caused this Agreement to be signed on the date set forth above. DEVELOPER: WITNESSES: N&S PROPERTIES,LLC, a Florida limited liability company By: Print Name: Name: Title: Print Name: STATE OF ) ss COUNTY OF ) The foregoing instrument was acknowledged before me on by , as of N&S PROPERTIES, LLC, a Florida limited liability company, on behalf of the company, who is personally known to me or who has produced as identification, on behalf of such limited liability company. [SEAL] Notary Public, State of Name: Commission Expires: 21 CITY: WITNESSES: CITY OF DANIA BEACH, a Florida municipal corporation Print Name: By: Name: Robert Baldwin Print Name: Title: City Manager ATTEST: Louise Stilson, City Clerk [SEAL] Approved as to form and legality for the benefit of the City only by: Weiss Serota Helfman Cole Bierman& Popok, P.L. By: Thomas J. Ansbro, City Attorney STATE OF FLORIDA ) )SS.. COUNTY OF BROWARD ) The foregoing instrument was acknowledged before me on by Robert Baldwin as City Manager and Louise Stilson as City Clerk, respectively of the CITY OF DANIA BEACH, a Florida municipal corporation, who are personally known to me or who produced as identification, on behalf of such corporation. My commission expires: NOTARY PUBLIC, State of Florida Print Name: 22