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HomeMy WebLinkAboutReso 2013-2163RESOLUTION NO. 2013-2 I L� A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, APPROVING THE FIRST AMENDMENT AND CONSENT TO ASSIGNMENT BETWEEN THE CITY OF SUNNY ISLES BEACH, FLORIDA, AMERICAN FEDERATED TITLE CORPORATION, AS TRUSTEE UNDER FLORIDA LAND TRUST #3258, AND BEACH BAR @ NEWPORT PIER, LLC, A FLORIDA LIMITED LIABILITY COMPANY, FOR MANAGEMENT OF THE PIER, IN SUBSTANTIALLY THE SAME FORM ATTACHED HERETO AS EXHIBIT "A "; AUTHORIZING THE NIAYOR TO EXECUTE SAID FIRST AMENDMENT AND CONSENT TO ASSIGNMENT; PROVIDING THE CITY MANAGER AND THE CITY ATTORNEY WITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, City of Sunny Isles Beach, Florida (the "City'), and American Federated Title Corporation; as Trustee under Florida Land Trust #3258 (`Assignor') entered into a Lease Agreement dated July 26, 2013 (the 'Prime Lease`) for the lease of restaurant facilities and a bait shop located at the Historic Newport Fishing Pier (Pier') with the address of 16501 Collins Avenue, Sunny Isles Beach, Florida 33160 (the "Leased Premises"); and WHEREAS, City and Assignor are parties to a Management Agreement for the Pier exclusive of the restaurant and bait shop, approved by the City Commission on July 18, 2013; and WHEREAS. City. Assignor, and Beach Bar @ Newport Pier, LLC, a Florida limited liability company ("Assignee') subsequently entered into a Sublease Agreement for the Pier wherein Assignor agreed to sublease the premises to Assignee in order for Assignee to operate Beach Bar @ Newport Pier restaurant at the Pier: and WHEREAS. Section 21 of the Management Agreement between City and Assignor allows City and Assignor to assign rights under the Management Agreement with prior written consent of Citv: and WHEREAS. Assignor desires to assign and Assignee desires to assume Assignor's rights and obligations with respect to the Management Agreement in order for Assignee to manage the Pier; and WHEREAS, City desires to provide its consent to this assignment. NOW THEREFORE, BE IT RESOLVED BY THE CITY CONUNIISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Approval of the First Amendment and Consent to Assignment. The First Amendment and Consent to Assignment between City. Assignor and Assignee, attached hereto as Exhibit "A ", is hereby approved in substantially the same form. Page 1 of 2 Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute said First Amendment and Consent to Assignment between City. Assignor and Assignee, in substantially the same form as the attached Exhibit "A ". Section 3. Authorization of City Manager and City Attorney. The City Manager and City Attorney are hereby authorized to do all things necessary to effectuate the terms of this Resolution. Section 4. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 21SA- day of Le�� 2013. ATTEST: (:�-5 Jane A. Hines: City Clerk. MMC APPROVED AS TO FOFUM AND LEGAL AWFICIENCY: City Attorney Vote: S -O Mayor Edelcup Vice Mayor Aelion Commissioner Gatto Commissioner Levin Commissioner Scholl Moved by: CprwLnSCNOLt_ Seconded by: .4,C-9- mq:!O✓ lkLt o a Page 2 of ✓(Yes) (No) (Yes) _(No) _(Yes) _(No) _IZkYes) (No) (Yes) _(No) tr.r irtrr o' f FIRST AMENDMENT AND CONSENT TO ASSIGNMENT THIS FIRST AMENDMENT AND CONSENT TO ASSIGNMENT ( "Assignment ") is made as of this 21�tf Ij V2a.vtVJ P.✓ 2013 and shall be effective as of the Effective Date (as defined herein) by and among THE CITY OF SUNNY ISLES BEACH, FLORIDA (hereinafter "City'), AMERICAN FEDERATED TITLE CORPORATION, AS TRUSTEE UNDER FLORIDA LAND TRUST # 3258, (hereinafter "Assignof' or "Management "), and Beach Bar @ Newport Pier, LLC, a Florida limited liability company, (hereinafter "Assignee" or "Management"), hereinafter collectively referred to as Parties. WHEREAS, City and Assignor entered into a Lease Agreement dated July 26, 2013 (the "Prime Lease") for the lease of restaurant facilities and a bait shop located at the Historic Newport Fishing Pier ( "Pier) with the address of 16501 Collins Avenue, Sunny Isles Beach, Florida 33160 (the "Leased Premises"); and oVHEREAS, City and Assignor are parties to a Management Agreement for management of the Pier exclusive of the restaurant and bait shop, approved by the City Commission on July 18, 2013; and WHEREAS, City, Assignor, and Assignee subsequently entered into a Sublease Agreement for the Pier wherein Assignor agreed to sublease the premises to Assignee in order for Assignee to operate Beach Bar @ Newport Pier restaurant at the Pier; and WHEREAS, Section 21 of the Management Agreement between City and Assignor allows City and Assignor to assign rights under the Management Agreement with prior written consent of City; and WHEREAS, Assignor desires to assign and Assignee desires to assume Assignor's rights and obligations under the Management Agreement in order for Assignee to manage the Pier; and WHEREAS. City desires to provide its consent to this assignment. NOW, THEREFORE, in consideration of the terms and conditions contained herein and for other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Incorporation of Recitals. The above- referenced recitals are true and correct and are incorporated herein. 2. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights, interests in, and obligations under the Management Agreement approved by the City Commission on July 18, 2013. Upon execution of this Assignment, the Assignee and Assignor shall be deemed collectively "Management' with respect to the Management Agreement and shall be responsible for collecting Pier admissions. 3. Amendment. Paragraph 4 of the Management Agreement is hereby amended in its entirety. Paragraph 4 shall read as follows: The Parties hereby agree that the admission fees collected from the Pier shall be divided and shared evenly 50/50 between City and Management. The Parties further agree that Management's 50% share of admission fees collected shall in turn be divided and shared between Assignee and Assignor. The Assignee or Assignor shall provide the City with financial and attendance records for admission to the Pier in writing on a monthly basis. The Assignee shall be responsible for the payment of sales tax required by the State of Florida for paid admission to the Pier. 4. This Assignment shall be binding upon, and be enforceable against, the Assignor and Assignee and inure to the benefit of City. 5. The Parties expressly agree that the Assignor shall not be released from any other duties, obligations and/or liabilities arising under or related to the Management Agreement. 6. City hereby consents to the foregoing Amendment to the Management Agreement and this Assignment. 7. This Assignment shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to the conflicts of law or choice of law provisions thereof. 8. The Parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature. 9. This Amendment and Assignment shall be deemed fully executed on the date that the last Pam, signs it. 10. All other terms of a particular provision in the Management Agreement not otherwise expressly modified herein shall remain in full force and affect. If there is any conflict between the terms of the Amendment and Assigmnent, and the Management Agreement, the terms set forth in the Amendment and Assignment shall prevail and be given superior effect and priority. REMAINDER OF THIS PAGE INTENTIONALL Y LEFT BLANK IN WITNESS WHEREOF, City, Assignor and Assignee signed this Amendment and Consent to Assignment in triplicate. —v1 "IA Jane A. Hines, MMC, tity Clerk S TO FORM AND CITY OF SUNNY ISLES BEACH, FLORIDA, e Municy)al Corporation of the State of Florida Edelcup, Mayor AMERICAN FEDERATED Tnu CORPORATION, AS TRUSTEE UNDER Title: BEACH BAR Q NEWPORT PIER, LLC a Florida Iia)MY eomPany ("Assignee ") Print Name Title: #A& 3 .d NNY'j`sfo � n u s • Y tt r yt tt�• iLO�•�a •`� O�TY O! [UM tr0 MANAGEMENT AGREEMENT FOR THE HISTORIC NEWPORT FISHING PIER BETWEEN THE CITY OF SUNNY ISLES BEACH ( "CITY") MK AMERICAN FEDERATED TITLE CORPORATION AS TRUSTEE UNDER FLORIDA LAND TRUST # 3258 ( "MANAGEMENT ") LOCATED AT PIER PARK 16541 COLLINS AVENUE SUNNY ISLES BEACH, FLORIDA THIS MANAGEMENT AGREEMENT ( "Agreement ") made and entered into this day of 2013, by and between the CITY OF SUNNY ISLES BEACH, a municipal corporation of the State of Florida (hereinafter referred to as "CITY') and AMERICAN FEDERATED TITLE CORP. AS TRUSTEE UNDER FLORIDA LAND TRUST #3258 or assigns, (hereinafter referred to as "MANAGEMENT"). WITNESSETH: WHEREAS, pursuant to Letter Agreement dated November 25, 2008, the CITY and DR. ROBERT CORNFELD or assigns ( "CORNFELD ") entered into a public/private partnership agreement to rebuild the Historic Newport Fishing Pier (the "Pier" ); and WHEREAS, the CITY has a desire to enter into a management agreement for the Pier exclusive of the restaurant and bait shop with a corporate entity affiliated with CORNFELD; and WHEREAS, the CITY wishes to provide MANAGEMENT with the exclusive right to manage and operate the Pier on behalf of the CITY. NOW THEREFORE, in consideration of the premises and mutual covenants hereinafter contained to be observed and performed, the parties hereto do hereby covenant and agree as follows: 1. DESCRIPTION OF THE PIER, RESTAURANT FACILITIES, AND BAIT SHOP For and in consideration of the mutual promises herein contained, MANAGEMENT agrees to assume full management and operation responsibility of the Pier located at 16501 Collins Avenue, Sunny Isles Beach, Florida, which is owned by the CITY (hereinafter referred to as the "AREA"). The term AREA includes the exterior of the Pier but excludes the indoor restaurant and bait shop areas. 2. COMMENCEMENT DATE. The Commencement Date is the date that the City has transferred the operations of the Pier or Area in writing to MANAGEMENT. MANAGEMENT shall commence full management of the Area no later than thirty (30) days from execution of this Agreement by the City. 3. SCOPE OF SERVICES MANAGEMENT hereby agrees to perform and furnish services necessary for the operations, supervision, and management of the AREA. It is the intent of the parties that MANAGEMENT will be responsible for the day -to -day operations of the AREA and all activities therein except the operations of the restaurant and bait shop. MANAGEMENT shall be subject to policies and procedures which, from time to time, hereafter may be established by the CITY but which shall not unreasonably interfere, impede, or impair the ability of MANAGEMENT to effectively manage the AREA. The following services shall be provided: (a) Admission to the Pier. MANAGEMENT shall have the exclusive right to manage the Pier and fishing activities on the Pier. MANAGEMENT shall charge a fee of no more than $5.00 (Five Dollars) to non - residents of the CITY. MANAGEMENT shall charge to residents a discount fee, which is 50% less than the fee charged to non - residents. The entrance fee for residents and non- residents may be increased or decreased upon approval of the CITY. (b) Supervision. MANAGEMENT shall supervise the management of the AREA including but not limited to crowd management, security, and collect admission fees and procedures, supervision of entrance fees collection. MANAGEMENT shall hire, supervise, and direct all of MANAGEMENf's employees and personnel. MANAGEMENT shall ensure that the AREA shall be operated in a manner comparable to a first class facility. (c) Records. MANAGEMENT shall maintain detailed, accurate and complete financial and other records of all its activities under this Agreement in accordance with generally accepted accounting principles. MANAGEMENT shall provide the CITY with admission records for the Pier in writing on a monthly basis. 4. MANAGEMENT OPERATIONAL COSTS. The CITY and MANAGEMENT agree that any funds received from admission to the Pier shall be used to cover expenses incurred by the CITY for cleaning the exterior of the Pier and to cover expenses for employees hired by MANAGEMENT to regulate admission of the Pier. The funds shall be distributed on a pro rata basis to cover expenses. If MANAGEMENT uses the same employee to regulate admission and operate the bait shop, admission funds shall not be used to pay the salary for such employee unless the CITY and MANAGEMENT agree on a formula to recover such costs. Any remaining funds after payment of expenses shall be shared 50150 between the parties. The City shall not be responsible for disposing garbage for the restaurant and bait shop areas. 5. PROHIBITED USES. Prohibited activities and limitations of activities on the Pier shall be determined by the City. The following activities are prohibited on the Pier: (a) Three (3) fishing rods limit per person; (b) Cast net fishing; (c) Snatch hooks fishing; (d) Kite fishing; (e) Shark'fishing; (f) Pets; (g) Loud music playing; (h) Glass bottles; (i) Skateboarding, bikes or scooters; 0) Shoes must be worn at all times; (k) Yoyo, hard lines or treble hooks fishing; 0) Fishing reels over 4.10 inches; and (m) Trolley Rigs. 6. HOURS OF OPERATION. Hours of operation of the Pier and Bait shop shall be such as to provide the maximum convenience to those served and shall be as determined by the CITY. The Pier shall be opened to the public 24 hours a day and 7 days a week. The hours herein may be modified upon mutual agreement by MANAGEMENT and CITY. 7. USE BY THE CITY AND RIGHT OF ENTRY (a) MANAGEMENT shall make available the AREA under its control for examination, at any reasonable time, by the CITY with at least five (5) days notice to MANAGEMENT. (b) CITY has the exclusive right to use the Pier up to nine (9) times during each calendar year upon providing thirty (30) days written notice to MANAGEMENT. S. MANAGEMENT'S EMPLOYEES (a) All personnel employed by MANAGEMENT shall be employees of MANAGEMENT and not of the CITY. (b) MANAGEMENT shall designate a supervisor who shall be responsible for the total operation by the AREA. 9. CONTRACT MONITORING The CITY MANAGER of the CITY shall be the liaison between CITY and MANAGEMENT on all matters relating to the management of the AREA and shall be the CITY's designated agent on all matters pertaining to this Agreement. MANAGEMENT shall name a qualified individual with experience in the management of similar facilities as the SUPERVISOR of the AREA. The SUPERVISOR shall be the day - today liaison between the CITY MANAGER and MANAGEMENT on all matters relating to this Agreement. 10. TERM OF THE AGREEMENT (a) TERM. This Agreement shall be for a period of five (5) years from the Commencement Date, unless terminated earlier pursuant to Section 12 of this Agreement. (b) EXTENSION: MANAGEMENT shall have the option to renew this Agreement for three (3) additional Five (5) year terms, provided that MANAGEMENT is not in default at the time of renewal of the terms. If MANAGEMENT is not in default, MANAGEMENT shall have the option to extend by giving CITY written notice of its election to extend the term of this Agreement not less than ninety (90) days prior to expiration of the Initial Term or the then running Renewal Term. 11. INDEMNIFICATION MANAGEMENT covenants and agrees that it shall indemnify, hold harmless and defend the CITY, its agents, officers and employees from and against any and all claims, suits, action, damages or causes of action arising during the term of this Agreement and all renewals hereof for any personal injury, loss of life, or damage to property sustained in or about the AREA, by reason of or as a result of MANAGEMENT's operation, management, use, or occupancy thereof, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all cost, attorney's fees, expenses and liabilities incurred in and about the defense of any such claim and the investigation thereof. 4 To the extent permitted by Section 768.28, Florida Statutes, the CITY covenants and agrees that it shall indemnify, hold harmless and defend MANAGEMENT, its agents, officers and employees from and against any and all claims, suits, action, damages or causes of action arising during the term of this Agreement and all renewals hereof for any personal injury, loss of life, or damage to property sustained in or about the AREA, by reason of or as a result of the negligence of the CITY's employees or its agents, and from and against any orders, judgments or decrees which may be entered thereon, and from and against all cost, attorney's fees, expenses and liabilities incurred in and about the defense of any such claim and the investigation thereof. 12. COMPLIANCE WITH LAWS. MANAGEMENT agrees to comply with all local, state and federal ordinances and laws, statutes, rules, and regulations, provided the CITY will cooperate to the extent necessary to enable compliance by MANAGEMENT. 13. TERMINATION OF MANAGEMENT AGREEMENT (a) MANAGEMENT shall be in default hereunder and CITY shall thereafter have the right to terminate this Agreement if MANAGEMENT fails to perform or comply with any of the terms, covenants, agreements or conditions hereof and such failure shall continue for more than thirty (30) days after written notice thereof from CITY. MANAGEMENT shall not be considered in default if MANAGEMENT shall within such thirty (30) day period have commenced with due diligence and dispatch to cure such default and shall thereafter complete with dispatch and due diligence the curing of such default within said thirty (30) day period. (b) In addition to the events of default set forth in Section 14 (a) above, the following shall constitute events of default which will grant CITY the right to terminate for cause: (c) The occurrence of any act or omission on the part of MANAGEMENT that deprives it of the rights, powers, licenses, permits, and authorizations necessary for the lawful and proper conduct and operation of the services and activities authorized. (d) The filing by or against MANAGEMENT of any petitions in bankruptcy either voluntary or involuntary, or the making by which the actions shall automatically be a basis for termination and bar the passing of any benefits to creditors, assignees, or transferees of MANAGEMENT. (e) The abandonment or discontinuance by MANAGEMENT, without written consent of the CITY, of any or all of the operations and services permitted or required. (f) _ The cessation or deterioration of services for a period that in the reasonable opinion of the CITY, materially and adversely affects the operation of the public services to be performed by MANAGEMENT. (g) The exercise by the CITY or MANAGEMENT of remedies and rights provided herein shall in no way affect any other right or remedy available to CITY or MANAGEMENT. (h) CITY shall have the right to terminate this Agreement in whole or in part for convenience, by giving MANAGEMENT no less than thirty (30) days written notice (delivered by certified mail, 5 return receipt requested) of intent to terminate. In the event of such termination, MANAGEMENT shall take all necessary measures to mitigate termination expenses. 14. FORCE MAJEURE Except as otherwise provided herein, neither parry shall be obligated to perform and neither party shall be obligated to perform and neither party shall be deemed to be in default of its performance if prevented by: (a) fire not caused by negligence of either party, earthquake, hurricane, wind, flood, act of God, riot, or civil commotion including the unavailability of sufficient fuel, energy or funds to operate the AREA occurring at the AREA; or (b) any law, ordinance, rule, regulation, or order of any public or military authority stemming from the existence of economic or energy controls, hostilities, war, or governmental law and regulation; or labor dispute which results in a strike or work stoppage affecting the AREA or services described in this Agreement other than those occurring as a result of an act or omission of MANAGEMENT. Notwithstanding the above, in the event of an emergency threatening damage to persons or property as determined by MANAGEMENT, MANAGEMENT shall act in an expeditious manner to protect said persons or property. 15. NONDISCRBUNATION MANAGEMENT agrees that there shall be no discrimination against any person on account of race, color, sex, religious creed, ancestry, national origin, or mental or physical handicap in the admittance to and use of the AREA and the improvements thereon. It is expressly understood that upon finding of any evidence of discrimination, the CITY shall have the right to terminate this Agreement. 16. CUMULATIVE REMEDIES No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies provided in this Agreement or otherwise available at law or in equity. 17. ATTORNEY'S FEES In the event it is deemed necessary by either the CITY or MANAGEMENT to file a lawsuit in the appropriate court of law to enforce any of the terms and conditions of this Agreement, the prevailing parry shall be entitled to reasonable attorney's fees. 18. SURRENDER OF PREMISES MANAGEMENT will quietly and peaceably deliver the AREA to the CITY in the same repair and condition in which they were received at the inception of this Agreement. 19. WRITTEN NOTICES The parties agree that all notices under this Lease Agreement must be in writing and shall be deemed to be served when delivered to either party at: rn If to MANAGEMENT: American Federated Title Corp. as Trustee under Florida Land Trust # 3258 ATTN: Robert M. Cornfeld 3850 Hollywood Boulevard, Suite 400 Hollywood, Florida 33021 If to CITY: CITY OF SUNNY ISLES BEACH Attn: City Manager and City Attorney 18070 Collins Avenue Sunny Isles Beach, FL 33160 20. CAPTIONS The captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Agreement or the intent of any provision thereof. 21. ASSIGNMENTIBINDING ON SUCCESSORS This Agreement shall not be assigned without the consent of the City. This Agreement shall be binding upon the CITY and MANAGEMENT, their successors and assigns, and they shall abide by each of the terms and conditions hereof. 22. AMENDMENTS AND MODIFICATIONS No amendments or modifications to this Agreement herein shall be binding on either party unless in writing, signed by both parties and approved by the City Commission. 23. CONFLICTING PROVISIONS The terms and conditions in this Agreement supersede any other conflicting provisions that are contained in any other document, including but not limited to any previously entered Letter Agreements or any attachments thereto. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their names by their duly authorized officers, all as of the day and year fast above written. 7 ATTEST: APPROVED AS TO FORM AND i""S FANO"T, : 3 /S C AYroRNEy CITY OF SUNNY ISLES BEACH, FLORIDA, a Municipal Corporation of the State of Florida MAYOR AMERICAN FEDERATED TITLE CORP., AS TRUSTEE UNDER FLORIDA LAND TRUST # 8 ASV "NY'S4 Ir City of Sunny Isles Beach 18070 Collins Avenue i Sunny Isles Beach, Florida 33160 (305) 947 -0606 City Hall t (305) 949 -3113 Fax F L O R\OP SAP (305) 947 -2150 Building Department c rY o F s u N P`°o (305) 947 -5107 Fax MEMORANDUM TO: Honorable Mayor and City Commission FROM: Christopher J. Russo, City Manager DATE: November 21, 2013 City Commission Norman S. Edelcup, Mayor Isaac Aelion, Vice Mayor Jeanette Gatto, Commissioner Jennifer Levin, Commissioner George "Bud" Scholl, Commissioner Christopher J. Russo, City Manager Hans Otti not, City Attorney Jane A. Hines, MMC, City Clerk RE: Resolution approving the First Amendment and Consent to Assignment between the City of Sunny Isles Beach, American Federated Title Corp., as trustee under Florida Land Trust #3258, and Beach Bar @ Newport Pier, LLC RECOMMENDATION This Resolution is presented for your consideration. REASONS The City of Sunny Isles Beach, Florida (the "City "), and American Federated Title Corporation, as Trustee under Florida Land Trust #3258 ( "Assignor ") entered ii-ito a Lease Agreement dated July 26, 2013 for the lease of restaurant facilities and a bait shop located at the Historic Newport Fishing Pier ( "Pier "). City and Assignor are also parties to a Management Agreement for the Pier exclusive of the restaurant and bait shop. Assignor desires to assign and Beach Bar @ Newport Pier, LLC, a Florida limited liability company ( "Assignee ") desires to assume Assignor's rights and obligations with respect to the Management Agreement in order for Assignee to manage the Pier. The Parties agree that the admission fees collected from the Pier shall be divided and shared evenly 50/50 between the City and Assignee. In turn, the Assignee's 50% share of admission fees collected shall be divided and shared between the Assignor and Assignee. The remaining terms and conditions of the Management Agreement shall remain in full force and effect.