HomeMy WebLinkAboutR-03-0838J-03-503
07/15/03
RESOLUTION NO. 03- 838
A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT(S), AUTHORIZING THE
SETTLEMENT OF CASE NO. 02-2523 CA 09, MIAMI
YACHT CLUB VS. CITY OF MIAMI, TO PROVIDE FOR
(1) THE CITY MANAGER TO EXECUTE AMENDMENT
NO. 1, IN SUBSTANTIALLY THE ATTACHED FORM,
TO THE LEASE AGREEMENT BETWEEN THE CITY OF
MIAMI AND MIAMI YACHT CLUB, A FLORIDA
NOT-FOR-PROFIT CORPORATION, FOR THE PURPOSE
OF CORRECTING THE FORMULA FOR THE
CALCULATION OF COST OF LIVING INCREASES TO
THE MINIMUM GUARANTEE AND THE ANNUAL
CONTRIBUTION TO THE RESERVE FUND, AND
CLARIFYING THE TIME PERIOD UTILIZED FOR
CALCULATING GROSS REVENUE IN EXCESS OF
$380,000 TO CALCULATE PERCENTAGE RENT;
(2) THE CITY MANAGER TO ALLOCATE TO THE
MIAMI YACHT CLUB A RENT CREDIT, IN THE
AMOUNT OF SEVEN THOUSAND FOUR HUNDRED EIGHTY
FOUR DOLLARS AND 58/100 ($7,484.58), AND A
FLORIDA STATE USE TAX CREDIT, IN THE AMOUNT
OF SIX HUNDRED TWENTY FIVE DOLLARS AND
71/100 ($625.71), REIMBURSING THE MIAMI
YACHT CLUB FOR THE PAST OVERPAYMENT OF RENT
BASED ON THE INCORRECT CPI FORMULA;
(3) PLAINTIFF'S ATTORNEY'S FEES AND COSTS IN
THE AMOUNT OF FIVE THOUSAND DOLLARS ($5,000)
TO BE PAID UPON EXECUTING A RELEASE FOR THE
CITY OF MIAMI, ITS PRESENT AND FORMER
OFFICERS, AGENTS AND EMPLOYEES FROM ANY AND
ALL CLAIMS AND DEMANDS; ALLOCATING FUNDS
FROM THE SELF-INSURANCE AND INSURANCE TRUST
FUND, INDEX CODE NO. 515001.624401.6.661.
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Cjr', j �u� ® � "t�
CITY COMMISSION
MEETING OF
4 2003
Resolution No.
03-- 838
r
WHEREAS, the City of Miami ("City") and the Miami Yacht
Club, a Not -For -Profit corporation entered into a Lease
Agreement dated December 2, 1997, for a term of nineteen (19)
years and four months commencing on December 2, 1997, and
expiring on March 31, 2016, with the option to renew for two (2)
additional five (5) year periods ("Lease Agreement"); and
WHEREAS, the Lease provides for annual adjustments to the
Minimum Guarantee based upon increases in the Consumer Price
Index ("CPI"); and
WHEREAS, the formula provided for in the Lease to calculate
the CPI percentage results in a compounding effect to the
increase that was not intended by the parties; and
WHEREAS, the Miami Yacht Club brought a lawsuit against the
City seeking damages in the amount of excess rent paid based on
the incorrect CPI adjustment, and equitable relief with respect
to certain terms and conditions provided for in the Lease,
including, the term of the occupancy by the City's Marine Patrol
of a portion of the leased premises, and the applicable time
period for calculating Gross Revenues in excess of $380,000 for
purposes of calculating the percentage rent; and
Page 2 of 5
03- 838
WHEREAS, the parties attended a mediation conference and
reached an agreement with respect to the claims asserted in the
above-described lawsuit.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are adopted by reference and
incorporated as if fully set forth in this Section.
Section 2. The City Manager is authorized!/ to execute
Amendment No. 1 to the Lease Agreement, in substantially the
attached form, with the Miami Yacht Club amending the formula
for calculating the cost of living adjustment to the Minimum
Guarantee and the Reserve Funds For Capital Improvements,
presently set forth in Sections 4.5, and 11.3 of the Lease
eliminating the compounding effect, and amending Section 4.2 of
the Lease, clarifying that the time period for establishing
gross revenues in excess of $380,000 for purposes of calculating
percentage rent is annual and not monthly.
�i The herein authorization is further subject to compliance with
all requirements that may be imposed by the City Attorney,
including but not limited to those prescribed by applicable City
Charter and Code provisions.
Page 3 of 5
03- 838
Section 3. The City Manager is authorized!' to establish
a credit, in the amount of Seven Thousand Four Hundred Eighty
Four Dollars and 58/100 ($7,484.58), and Florida State use tax
credit, in the amount of Six Hundred Twenty Five Dollars and
71/100 ($625.71), to be issued to the Miami Yacht Club (specify
manner of issuing the credit), reimbursing the Miami Yacht Club
for the excess rent paid as a result of the application of the
incorrect CPI formula from December 2, 1997, through May 31,
2003.
Section 4. In addition to the credit described above,
the Director of Finance is authorized to pay the Miami Yacht
Club the sum of Five Thousand Dollars ($5,000) for attorney's
fees, in full and complete settlement of any and all claims and
demands against the City of Miami, for the case of Miami Yacht
Club vs. City of Miami, in the Circuit Court of the Eleventh
Judicial Circuit in and for Miami -Dade County, Florid, Case
No. 02-2523 CA (09), upon executing a release, in a form
acceptable to the City Attorney, for the City of Miami, its
present and former officers, agents and employees from any and
all claims and demands, with funds allocated from the
Self -Insurance and Insurance Trust
No. 515001.624401.6.661.
Page 4 of 5
Fund, Index Code
03- 838
Section 5. This Resolution shall become effective
immediately upon its adoption and signature of the Mayor Y
PASSED AND ADOPTED this 24th day of July , 2003.
?kMEL A. DIAZ, MA
ATTEST-.
PRISCILLA A. H M ON
CITY CLERK
APPROVE O FQRI�' AND CORRECTNESS:t/
NDRO VILARELLO
ATTORNEY
W7284:JOB:dd:AS
zi 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 become effective immediately upon override of the veto by
the City Commission.
Page 5 of 5
03- 838
AMENDMENT NO. 1 TO THE LEASE AGREEMENT BETWEEN THE CITY OF
MIAMI AND MIAMI YACHT CLUB
This Amendment entered into this day of , 2003, by
and between the City of Miami, a municipal corporation of the State of Florida (the
"Lessor"), and Miami Yacht Club, a not-for-profit corporation (the "Lessee") for the
purpose of amending that certain Lease Agreement between the Lessor and Lessee dated
December 2, 1997, (the "Agreement").
WHEREAS, the City of Miami ("City") and the Miami Yacht Club, a Not -For -
Profit corporation entered into a Lease Agreement dated December 2, 1997, for a term of
nineteen (19) years and four months commencing on December 2, 1997, and expiring on
March 31, 2016, with the option to renew for two (2) additional five (5) year periods (the
"Lease Agreement"); and
WHEREAS, the Lease provides for annual adjustments to the Minimum
Guarantee based upon increases in the Consumer Price Index (CPI); and
WHEREAS, the formula provided for in the Lease to calculate the CPI percentage
results in a compounding effect to the increase that was not intended by the parties; and
WHEREAS, on or about June 15, 2002, the Miami Yacht Club, Inc. filed its
Amended Complaint (Case No: 02-2523 CA 09) against the City of Miami, (a copy of the
Amended Complaint is attached as Exhibit "A"), seeking damages in the amount of
excess rent paid based on the incorrect CPI adjustment, and declaratory judgment with
respect to certain terms and conditions provided for in the Lease, including, the term of
the occupancy by the City of Miami Marine Patrol of a portion of the leased premises,
and the applicable time period for calculating Gross Revenues in excess of $380,000 for
purposes of calculating the percentage rent; and
WHEREAS, the parties attended a mediation conference and reached an
agreement with respect to the claims asserted in the above-described lawsuit;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, including the payment by the City of Plaintiff's attorney's fees,
and the release of all claims executed by the Plaintiff with respect to the issues raised in
the Amended Complaint, (a copy of the Release is attached as Exhibit `B"), the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The recitals and findings set forth above are hereby adopted by reference thereto and
incorporated herein as if fully set forth in this Amendment.
2. Effective December 2, 1997, Section 4.2 entitled "Percentage Rent" of the Agreement
is hereby deleted in its entirety and substituted with the following:
"J1b5
In addition to the payment of Minimum Guarantee, commencing
thirty days after the expiration of the first calendar month after the Lease
Date and thereafter within thirty days after the expiration of each every
calendar month of the Lease Term, Lessee shall pay to Lessor, without any
prior demand and without any deduction or setoff whatsoever, an amount
equal to nine percent (9%) of annual Gross Revenues in excess of three
hundred eighty thousand dollars and 00/100 ($380,000.00) per Lease
Year (the "Percentage Rent'). Lessee shall pay the Percentage Rent in the
manner and upon the conditions hereinafter provided. Within thirty (30)
days after the end of each calendar month, Lessee shall provide Lessor a
statement of its Gross Revenues signed by an officer of Lessee, for the
calendar month commencing approximately sixty (60) days prior and shall
pay to Lessor, in the form and at such address as provided for in Section
4. 1, the Percentage Rent.
3. Effective December 2, 1997, Section 4.5 entitled "Adjustment of the Minimum
Guarantee" of the Agreement is hereby deleted in its entirety and substituted with the
following:
4.5 Adjustment of the Minimum Guarantee
A. Lessee agrees that, as provided for below, the Monthly
Rent Guarantee shall be increased on the first day of each Lease Year
(hereinafter the "Anniversary Date'), by any increase during the prior
year in the index known as "United States Bureau of Labor Statistics,
Consumer Price Index. The Minimum Guarantee shall utilize the
"Consumer Price Index for All Items, Miami - Ft. Lauderdale, Florida",
Base Year 1982-84=100 (hereinafter the "CPP). Said adjustment shall be
hereinafter referred to as the "CPI Escalation ".
The CPI Escalation of the Minimum Guarantee shall be equal to
the Minimum Guarantee in effect for the immediately preceding Lease
Year plus the product of that Base Monthly Rent multiplied by the "CPI
Percentage " (as defined below).
The CPI Percentage shall equal the fraction (i) whose numerator
equals the total of (a) the monthly Index published immediately prior to
the Anniversary Date (or the nearest reported previous month), minus (b)
the monthly Index published immediately prior to the Anniversary Date of
the immediately preceding Lease Year and (ii) whose denominator is the
same as (b) above.
If the Index is discontinued with no successor Index, Lessor shall
select a comparable index.
Lessor shall compute the CPI Escalations and send a notice, with
calculations, to Lessee setting forth the adjusted Minimum Guarantee
within sixty (60) days of the commencement of each Lease Year or as soon
as such Index is available. In the event the Minimum Guarantee increases,
03- 838
Lessee shall pay to Lessor within thirty (30) days of receiving such notice,
the additional Minimum Guarantee owed for the months, which have
elapsed in the current Lease Year.
4. Effective December 2, 1997, Section 11.3 entitled "Reserve Funds For Capital
Improvements" of the Agreement is hereby deleted in its entirety and substituted with
the following:
Lessee agrees by the end of Lease Years one through five, Lessee
shall deposit in a separate account by the end of each of these lease years
the sum of six thousand dollars and 00/100 ($6,000) (the "Annual
Contribution ") for the purpose of establishing a Reserve Fund for the sole
purpose of funding "Capital Improvements " to the Lease Property, and no
other purpose. A Capital Improvement is defined as a capital expenditure
of five thousand dollars and 00/100 ($5,000) or more, resulting in the
acquisition, improvement or addition to fixed assets in the form of
buildings or improvements, more or less permanent in character and
durable equipment with a life expectancy of at least three years. By the
end of Lease Year five, said Reserve Fund shall have an ending balance of
thirty thousand dollars ($30, 000). Except for Lease Years I through 5, by
the end of each Lease Year, the Reserve Fund shall have a minimum fund
balance of thirty thousand dollars ($30,000). By the end of each Lease
Year thereafter, Lessee shall make an Annual Contribution to said fund.
Lessee agrees that, as provided for below, the Annual Contribution shall
be increased by any increase during the prior year in the index known as
"United States Bureau of Labor Statistics, Consumer Price Index for All
Items, Miami -Ft. Lauderdale, Florida, Base Year 1982-84=100
(hereinafter the "CPI ) or five percent (5016), whichever is less.
The adjustment utilizing the CPI Index shall hereafter be referred
to as the "CPI Escalation ". The CPI Escalation shall be equal to the
Annual Contribution in effect for the immediately preceding Lease Year
plus the product of that same Annual Contribution multiplied by the "CPI
Percentage ".
The CPI Percentage shall equal the' fraction (i) whose numerator
equals the total of (a) the monthly Index published immediately prior to
the Anniversary Date (or the nearest reported previous month), minus (b)
the monthly Index published immediately prior to the Anniversary Date of
the immediately preceding Lease Year and (ii) whose denominator is the
same as (b) above.
Except as specifically provided herein, all of the terms and provisions of the
Agreement shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of the
day and year first above written.
ATTEST:
Priscilla A. Thompson
City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
LOW
Alejandro Vilarello
City Attorney
ATTEST
Signature
Print Name and Title
LESSOR:
CITY OF MIAMI, a municipal corporation
of the State of Florida
Un
Joe Arriola
City Manager
MIAMI YACHT CLUB
Signature
Print Name and Title
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 02-2523 CA 09
MIAMI YACHT CLUB, INC.,
A Florida Not -For -Profit
Corporation,
Plaintiff,
Vs.
CITY OF MIAMI,
Defendant.
AMENDED COMPLAINT
Comes now, THE MIAMI YACHT CLUB, INC. (MIAMI YACHT CLUB) and sues
THE CITY OF MIAMI (CITY) and avers:
1. This is an action for Declaratory Judgment pursuant to Chapter 86 Florida
Statutes, Breach of Contract and Damages and is within the jurisdiction of
this court.
PARTIES AND JURISDICTION
2. Plaintiff is a Florida Not -For -Profit Corporation, established in 1927 located
at 1001 MacArthur Causeway, Miami, Florida.
3. Defendant is a political organization located within Miami -Dade County,
sui juris.
4. Chapter 768 Florida Statutes does not apply to this proceeding for causes
of action sounding in breach of contract and declaratory relief.
liffla "o" 16
BACKGROUND
5. The Miami Yacht Club is a Not -For -Profit Florida Corporation founded in
1927 with the stated purpose to promote and conduct amateur sailing
regattas, train youth in the sport of sailing and to provide boating
instruction and safety training for club members and the general public. In
1947 MIAMI YACHT CLUB moved to Watson Island, City of Miami,
Florida where it now is located.
Over the years, MIAMI YACHT CLUB has entered into lease agreements
with THE CITY OF MIAMI for use of the premises on Watson Island. The
previous lease expired on February 28, 1985, and from that time until
1997, MIAMI YACHT CLUB continued as a month-to-month tenant.
In May 1997 MIAMI YACHT CLUB and CITY OF MIAMI began
negotiations for a new lease. Negotiations%culminated in June 1997 with
agreement between the parties on all material terms of the lease. The
Commissioner of the City of Miami approved a resolution on July 24, 1997
authorizing the City Manager to enter into the lease as agreed to by the
parties. The lease that was drafted by the City Manager was incorrect and
inaccurate in two material terms, which terms require resolution by the
court. All attempts to resolve the errors have been unsuccessful.
ATTORNEYS FEES
6. Attorney's fees are provided for in Article 20.8 of the Lease Agreement
and Florida Statute 57.105.
03- 838
SEVERABILITY
7. All terms of the lease are severable without affecting the validity of the
lease as a whole. (Article 20.10)
COUNT I -- DECLARATORY RELIEF - PERCENTAGE RENT
8. Plaintiff realleges and reavers paragraphs 1 through 7 and further avers:
9. Plaintiff has met all conditions precedent to bringing this action and/or
conditions have been waived by Defendant.
10. The lease between the parties dated December 2, 1997 attached (o the
original complaint is incorporated for all purposes.
11. Pursuant to paragraph 4.1 -and 4.2 Plaintiff is obligated to pay General
(monthly) Rent and Percentage Rent to Defendant.
12. It was the intent of the parties that both General Rent and Percentage
Rent would be modified each year by applidation of any increase in the
Consumer Price Index (CPI).
13. All negotiations and all proposals for lease made by Defendant included
the CPI modification as a material term to General Rent and Percentage
Rent.
14. Defendant drafted the lease and presented it to Plaintiff for execution,
which presentation was a "take it or leave it" presentation.
15. The parties did not enjoy equal bargaining power during the lease drafting
or presentation, with Defendant having and exercising power over the
actual existence of Defendant.
03- 838
16. The lease terms for Percentage Rent as drafted by Defendant does not
obligate Plaintiff to pay Percentage Rent as demanded by Defendant, and
is ambiguous on its face.
1�. Plaintiff is unsure of its rights, duties and powers under the Percentage
Rent terms of the lease, and consequently MIAMI YACHT CLUB is in
need of a declaration of the respective rights and obligations under the
contract.
� 8. MIAMI YACHT'S iniuiest in obtaining a declaration of the parties` rights is
actual, present, adverse and ongoing and can -only be resolved by the
court's construction of the terms and_conditions of the lease agreements
between the parties.
Wherefore, MIAMI YACHT CLUB prays the court:
A. Exercise jurisdiction over the parties and the subject matter;
B. Construe the terms of the lease agreements as to declare the rights
and obligations of the parties;
C. Award attorneys fees and costs to MIAMI YACHT;
D. Grant such other relief as is just and necesvary
COUNT II — DECLARATORY RELIEF — MARINE PATROL
19. Plaintiff realleges and reavers paragraphs 1 through 18 and further
alleges:
03- 838
20. As part of the lease, MIAMI YACHT agreed to provide housing, utilities
and services to City of Miami Marine Patrol on a temporary basis, without
compensation. (Article 25 of Lease attached as Exhibit A to the original
complaint)
21. Temporary use of the MIAMI YACHT CLUB premises by the City of Miami
Marine Patrol was agreed to by the parties, and recommended to the City
of Miami Commissioner, and approved. (July 24, 1997 Memorandum
attached as Exhibit B to the onginai complaint,
22. When Defendant drafted the lease it failed to�include any specific terms of
the temporary use.
23. The lease as written cannot be enforced due to the indefiniteness of the
terms, entered in error by THE CITY OF MIAMI, and is ambiguous, and
voidable for indefiniteness/failure to include`all material terms of a
contract.
24. MIAMI YACHT is unsure of its obligations and rights under the policy, and
the obligations and rights of the CITY OF MIAMI.
25. WAVII YACHT CLUB'S i^teres± in c,'L taininq a declaration of the party's
rights is actual, present, adverse and ongoing and can only be resolved by
the courts construction of the terms and effect of the lease on the parties
respective positions.
Wherefore, MIAMI YACHT CLUB prays the court:
A. Exercise jurisdiction over the parties and the subject matter;
03- 838
B. Construe the terms of the lease to declare the rights and obligations
of the parties;
C. Award costs and attorneys fees for this proceeding;
D. Grant such other relief as is just and necessary
COUNT III — BREACH OF CONTRACT
26. Plaintiff realleges and reavers paragraphs 1 through 25 and further avers:
27. Plaintiff has been obligated to pay "Percentage Rent" to Defendant under
thlt�ai of default, wiihoui. ecourse.
28. Said demand for payment constitutes a material breach of the terms of the
contract, causing loss, damage and injury to Plaintiff. Plaintiff is entitled to
recover all excess rents paid in the past, with interest.
COUNT IV — DECLARATORY RELIEF — CPI ESCALATION
29. Plaintiff realleges paragraphs 1 through 18 and further alleges:
30. Article 4.1 of the lease obligates MIAMI YACHT CLUB to pay base rent in
the amount of $2,917/month as the initial rent due under the lease. Article
H.3 obligates MIAMI YACHT CLUB to establish a reserve fund for capital
improvements.
31. Article 4.5 of the lease entitled Adjustment of the Minimum Guarantee
attempts to adjust or escalate that rent on a year-to-year basis, by the
terms of that section and Article 11.3 attempts to adjust or escalate the
reserve fund on a year to year basis by the terms of that section.
32. Defendant has interpreted this lease provision to require adjustment of
monthly rent and reserve on a cumulative or exponential basis as opposed
03- 838
to the year-to-year or arithmetic basis, which was the intent of the parties,
and the standard in the commercial leasing industry. The CPI Escalation
terms in Article 4.5 and 11.3 are identical.
33. Defer:dant's contention on this issua is clearly in contravention of the
terms and intent of the parties, and is based solely on the ambiguous
terms of the lease that were prepared and drafted by Defendant.
34. Defendant has made demand on Plaintiff to pay the rent adjustment based
on its clawed inteipraictilun uf'Lhc ;case, causing actual harm and damage
to Plaintiff.
35. Plaintiff is unsure of its rights, duties, powers and obligations under the
adjustment by the CPI Escalation terms of the lease and consequently
MIAMI YACHT CLUB is in need of a declaration of the respective rights
and obligations under the contract.
36. MIAMI YACHT Club's interest in obtaining a declaration of the parties'
rights is actual, present, adverse and ongoing and can only be resolved by
the court's construction of the terms and conditions of the lease
agreement hetween thc= partse
37. Defendants interpretation of this lease term will put Plaintiff out of
business before the end of the lease term, and on its face is
unconscionable and violates Defendants obligation of good faith and fair
dealing.
Wherefore, MIAMI YACHT CLUB prays the court:
A. Exercise jurisdiction over the parties and the subject matter;
03- 838
B. Construe the terms of the lease agreements as to declare the rights
and obligations of the parties;
C. Award attorneys fees and costs to MIAMI YACHT CLUB;
D. Corant other r iie as a just ay.(-,' neces;;ary.
COUNT V — BREACH OF CONTRACT
38. Plaintiff realleges paragraphs 1 through 37 and further avers:
39. Plaintiff has been obligated to pay The Adjustment of the Minimum
Gia<Irantee to Defeli;:aelt of �tifault without recowse, and has
been damaged by these payments in excess -of4he lease terms.
40. Defendant has interpreted the lease terms in a manner that make the _
lease so one-sided and oppressive as to be an unconscionable lease
terms under the circumstances, and is a breach of Defendants obligations
of good faith and fair dealing.
41. Defendants have breached the contract by making its demands to pay
unconscionable cumulative rent, damaging Plaintiff in the past and in the
future.
42. Plaintiff is Pn1itlr'` t^ rQnover all excess rents pail or accrued in the oast
with interest.
Wherefore, Plaintiff demands judgment against Defendant for all sums paid in
Adjustment to the Minimum Guarantee since the inception of the lease, with
prejudgment interest, attorney's fees and costs of this action.
03- 838
j
Dated this gay of June, 2002.
GORDON J. EVANS, P.A.
1570 Madruga Avenue
Suite 200
Coral Gables, Florida 33146
F86) 268-41§,G,
Gordon J. Evans, Esquire
Florida Bar No.: 229121
03— 838
RELEASE OF ALL CLAIMS
THIS INDENTURE WITNESSETH that in consideration of the sums of Five
Thousand Dollars ($5,000.00), receipt whereof is hereby acknowledged, the Miami Yacht Club,
releases and forever discharges the CITY OF MIAMI, its agents, officers, servants, employees,
contractors, etc., from any and all claims, demands, damages, costs, expenses, loss of services,
actions and causes of action, legal or equitable arising from the allegations set forth in the suit
that was filed in the Circuit Court of the Eleventh Judicial Circuit, Case No. 02-2523 CA 09.
I understand that the CITY OF MIAMI admits no liability of any sort by reason of this
release and that said payment and settlement in compromise is made to terminate any further
controversy respecting all claims for legal and/or equitable relief that the Miami Yacht Club has
heretofore asserted in the aforementioned legal action.
SIGNED AND SEALED this day of , 2003.
WITNESSED BY:
MIAMI YACHT CLUB
By:
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI -DARE)
BEFORE ME, the undersigned authority, personally appeared
as
representative of the MIAMI YACHT CLUB, who executed the foregoing instrument and
acknowledges that she executed the same at his free act and deed.
SWORN AND SUBSCRIBED to before me this day of 2003,
by , as representative of the MIAMI YACHT CLUB, who is
personally known to me or has produced
as identification.
NOTARY PUBLIC -STATE OF FLORIDA
My Commission Expires:
W016Release 03— 838
i' P
WHEREAS
CORPORATE RESOLUTION
and release with the City of Miami; and
desires to execute an amendment
WHEREAS, the board of Directors at a duly held corporate meeting has considered the
matter in accordance with the By -Laws of the corporation;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that the
president and secretary are hereby authorized and instructed to execute the Amendment No. 1 to
the Lease Agreement between the City of Miami and Miami Yacht Club, and the Release of All
Claims, to which this resolution is attached.
DATED this day of
CORPORATE SECRETARY
OF DIRECTORS
Print name
2003.
CHAIRPERSON OF THE BOARD
Print name
W016Release _2_ 03-
838
38
CITY OF MIAMI, FLORIDA CA=7
INTER-OFFICE MEMORANDUM
TO: Honorable Mayor and Members DATE :FILE :
Of the City Commission Jll� 1 6 2Q03 j
SUBJECT: Amendment to Miami Yacht
Club Lease
oe Arriola
FROM: Chief Admimstrato REFERENCES: City Commission Agenda
ENCLOSURES: July 24, 2003
RECOMMENDATION:
It is respectfully recommended that the City Commission adopt the attached Resolution
authorizing the settlement of Case No. 02-2523 CA 09, Miami Yacht Club vs. City of
Miami, to provide for: (1) the City Manager to execute Amendment No. 1, in
substantially the attached form, to the lease agreement between the City of Miami and
Miami Yacht Club, a Florida not-for-profit corporation, for the purpose of correcting the
formula for the calculation of cost of living increases to the Minimum Guarantee and the
Annual Contribution to the Deserve Fund, and clarifying the time period utilized for
calculating Gross Revenue in excess of $380,000 to calculate percentage rent; (2) the
City Manager to allocate to the MYC a rent credit in the amount of $7,484.58 and a
Florida State Use Tax credit in the amount of $625.71 thereby reimbursing the MYC for
the past overpayment of rent based on the incorrect CPI formula; and (3) plaintiff's
attorney's fees and costs in the amount of $5,000.00 to be paid upon executing a release
for the City, its present and former officers, agents and employees from any and all
claims and demands, with funds to be allocated from the Self-insurance and Insurance
Trust Fund, Index Code No. 515001.624401.6.661.
BACKGROUND:
The City entered into a Lease Agreement (the "Lease") with Miami Yacht Club dated
December 2, 1997 for a term of nineteen (19) years and four months expiring on March
31, 2016 with an option to renew for two (2) additional five (5) year periods.
The Lease provides for annual adjustments to the Minimum Guarantee based upon
increases in the Consumer Price Index (CPI). The formula provided for in the Lease to
calculate the CPI percentage results in a compounding effect to the increase that was not
intended by the parties.
The Miami Yacht Club brought a lawsuit against the City seeking damages in the amount
of excess rent paid based on the incorrect CPI adjustment, and equitable relief with
respect to certain terms and conditions provided for in the Lease, including, the term of
-the occupancy by the City of Miami Marine Patrol of a portion of the leased_ premises,
and the applicable time period for calculating Gross Revenues in excess of $380,000 for
purposes of calculating the percentage rent.
03- 838
I
The Honorable Mayor and Members
Of the City Commission
Page 2
The parties attended a mediation conference and reached an agreement with respect to
the claims asserted in the above-described lawsuit.
Financial Impact: There is financial impact. Due to the correction of the CPI
formula, a rent credit in the amount of $7,484.58 and a Florida State Use Tax credit
in the amount of $625.71 shall be granted to the MYC along with the payment of
$5,000 as reimbursement of attorney's fees.
JA/LMH/Kr�K/Memo City Comm. Amend. I- MYC
03— 838
Budgetary Impact Analysis
Department Economic Development
Commission Meeting Date: July 24, 2003
Division:
Title and brief description of legislation or attached ordinance/resolution: Resolution authorizing settlement
with Miami Yacht Club & execution of amendment to agreement with Miami Yacht Club to correct CPI formula;
further authorizing payment of attomeys fees
1. Is this item related to revenue? No ❑ Yes ® Revenue Source: Miami Yacht Club rents
Results in credit (loss of revenue) in the amount of $8,110.29
2. Is this item an expenditure? No ❑ Yes ® Amount: $5,000
General Fund Account No: 515001.624401.6 Self Insurance & Insurance Trust Fund
Special Revenue Fund Account No:
CIP Project No:
3. Are there sufficient funds in Line.4kem? No: ❑ Yes:
Qnfficient funds will he transferred from the following line items:
ACTION ACCOUNT NUMBER
TOTAL
From
$
From
$
To
$
To
$
4 Is this item funded by Homeland Defense/Nei?hhorhood Imnrovement Ronds? No 171 Yes n
Project Name
Total Bond
Allocation
I" Series
Appropriation
Total
Allocations/
Encumbrances
Balance
Dollars Spent
to Date
Comments:
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by.
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APPROVALS 4
Verified. by CIP (If applicable).. t
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Direct^ /DP-,ioneP -------_-._.. _
Date: _
03- 838