HomeMy WebLinkAboutR-02-0623J-02-128
5/08/02
02- 623
RESOLUTION NO.
A RESOLUTION OF THE MIAMI CITY COMMISSION,
WITH ATTACHMENT (S) AUTHORIZING THE CITY
MANAGER TO EXECUTE THE THIRD AMENDMENT TO
USE AGREEMENT BETWEEN BAYFRONT PARK
MANAGEMENT TRUST AND BAYFRONT VENTURES, IN
SUBSTANTIALLY THE ATTACHED FORM, TO AMEND
PROVISIONS RELATING TO PAYMENT, ADD AN
ADDITIONAL REQUIREMENT OF A GUARANTEE,
DELETE THE REQUIREMENT OF A LETTER OF
CREDIT, AND PROVIDE FOR THE EXERCISE OF THE
EXTENSION TERM.
WHEREAS, the Bayfront Park Management Trust ("Trust") has
managed the Mildred and Claude Pepper Bayfront Park ("Bayfront
Park") with the goal of ensuring maximum community involvement;
and
WHEREAS, the Trust and Concorde Cruises, Inc., a South
Dakota Corporation, d/b/a Bayfront Ventures, formerly known as
Bayfront Ventures, a Florida Limited Partnership ("User"),
entered into a Use Agreement dated June 25, 1997 ("Agreement"),
for the operation of a casino gaming vessel at Bayfront Park, as
amended on September 26, 1997; and
WHEREAS, the parties now wish to amend the Agreement to
CITY COMMC�CY�+�
MEET r
J U N 1 3 2002
fWsotution No.
02- 623
amend provisions relating to payment, to add a provision
requiring the guaranty attached as "Exhibit 1" to the Third
Amendment to the Agreement which is attached hereto as "Exhibit
A," (the "Third Amendment"), delete the letter of credit
requirement, and provide for the exercise of the extension term;
and
WHEREAS, the Trust approved the Third Amendment, in
substantially the attached form, on January 29, 2002; and
WHEREAS, the Executive Director of the Trust recommends
approval of the Third Amendment;
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
the Third Amendment to Use Agreement Between Bayfront Park
Management Trust and Bayfront Ventures, in substantially the
attached form.
Section 3. This Resolution shall become effective
1� The herein authorization is further subject to compliance with all
requirements that may be imposed by the City Attorney, including but
not limited to those prescribed by applicable City Charter and Code
provisions.
Page 2 of 3
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immediately upon its adoption and signature of the Mayor.2/
PASSED AND ADOPTED this 13th day of June 2002.
EL A. DIAZ, MAYO
ATTEST:
PRISCILLA A. THOMPSON
CITY CLERK
APPROVE,"AS O F M AND CORRECTNESS:
r'
L ANDRO VILARELLO
TY ATTORNEY
l
W599 :GMM:dd
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 not be
effective unless the City Commission overrides the veto.
Page 3 of 3
02— 1lu
"EXHIBIT In
GUARANTY
FOR VALUABLE CONSIDERATION, Concorde Gaming Corporation, a Colorado
corporation, ("Guarantor") hereby unconditionally guarantees to Bayfront Park
Management Trust, a limited agency and instrumentality of the City of Miami ("Trust"),
and to the City of Miami, a municipal corporation of the State of Florida ("City"), the full
and prompt performance and full and prompt payment of any and all obligations and
indebtedness, whether monetary or non -monetary in nature, of Concorde Cruises, Inc.,
successor by operation of law to Bayfront Ventures, a Florida general partnership
(collectively referred to herein as "User"), under the Use Agreement dated June 25, 1997,
as amended by the Amendment to Use Agreement dated September 26, 1997, the Second
Amendment to Use Agreement dated , 2001, and the Third Amendment to Use
Agreement dated , 2002 (collectively, the "Use Agreement"), and under the
Valet Parking Concession Agreement dated December 8, 1998, as amended by the
Amendment to Valet Parking Concession Agreement dated , 2002
(together, the "Parking Agreement", and collectively with the Use Agreement, as each
may be further amended from time to time, the "Amended Agreements"). (Copies of the
Amended Agreements are attached hereto as Exhibit A.).
The word "Indebtedness" is used herein in its most comprehensive sense and includes
any and all debts, obligations and liabilities of User to City and/or Trust arising from the
Amended Agreements, whether heretofore, now, or hereafter made, incurred, or created,
whether monetary or non -monetary in nature, and however arising, whether due or not,
absolute or contingent, liquidated or nonliquidated, and whether User may be liable
individually, or jointly with others, or whether recovery upon such Indebtedness may be
or hereafter becomes barred by any statute of limitations, or whether such Indebtedness
may be or hereafter becomes otherwise unenforceable, and is not limited as to amount or
type, except that Guarantor's liability for monetary obligations shall be limited to an
amount not greater than the sum of the monthly payments due under the Amended
Agreements during a period of Twenty -Four (24) months and Guarantor's liability for
non -monetary obligations shall be limited to those corresponding to the actual term of the
Amended Agreements. In the event Guarantor elects to terminate the Amended
Agreements pursuant to the Early Termination Procedure contained therein, Guarantor's
monetary liability at any given time during the Notice Period (as defined in the Amended
Agreements) shall be decreased by an amount equal to the total monies actually paid by
Guarantor from the start of the Notice Period through such time.
Guarantor's obligations under this Guaranty (the "Guaranty Obligations") are
independent of the obligations of User. A separate action or actions may be brought and
prosecuted against Guarantor, whether or not action is brought against User, and User
may be joined in any such action or actions. This Guaranty is a guaranty of payment and
not of collection.
Guarantor acknowledges and agrees with Trust and City that each Indebtedness is a valid
and binding obligation of User. Guarantor authorizes Trust and City, without notice to or
demand upon Guarantor, from time to time, and on any number of occasions, to (a)
02- 623
renew, amend, compromise, extend, accelerate, reinstate, or otherwise change the time
for payment of the Indebtedness or (b) otherwise change the terms of the Indebtedness or
Guaranty Obligations.
Guarantor waives any right to require Trust and City to (a) proceed against User; (b)
proceed against or exhaust any security held from User; or (c) pursue any other remedy
whatsoever available to Trust and City. Guarantor waives any defense arising by reason
of any disability or other defense of User or by reason of the cessation from any cause
whatsoever of User's liability. Guarantor waives any right to enforce any remedy that
Trust or City now has or may hereafter have against User. Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests, notices of
dishonor, and notices of acceptance of this Guaranty and of the existence, creation or
incurrence of new or additional indebtedness and all other defenses to any action or
proceeding to enforce this Guaranty, except the two defenses of actual payment and
actual performance in accordance with the Amended Agreements.
No delay on the part of Trust or of City in the exercise of any right, power or privilege
under the terms of any documentation between (a) Trust and/or City and (b) User, or
under this Guaranty, shall operate as a waiver of any such privilege, power or right.
Upon default of User on any of its Indebtedness to Trust and City, or if User or Guarantor
shall become insolvent or make an assignment for the benefit of creditors, or if a petition
in bankruptcy or for corporate reorganization or for an arrangement be filed by or against
User or Guarantor (and, in the case of an involuntary proceeding, not dismissed within
sixty (60) days of its listing), or if there is the appointment of a receiver for User or
Guarantor or for their property, or if a judgment is obtained or warrant of attachment
issued against User or Guarantor, and the same is not bonded off within fifteen (15) days
from entry thereof, then all of the Indebtedness, shall, without notice or demand, at the
option of Trust and City, become immediately due and payable and shall be paid
forthwith by Guarantor.
Guarantor hereby submits to the jurisdiction of the state and federal courts in the State of
Florida for purposes of any action arising from or growing out of this Guaranty, and
further agrees that the venue of any such action shall be laid in Miami -Dade County.
Guarantor acknowledges that the Trust and the City have been induced by this Guaranty
to re -negotiate the terms of the Amended Agreements with User, and that Trust and City
would not have agreed to such re -negotiation without this Guaranty.
Guarantor acknowledges and agrees that this Guaranty shall remain in full force and
effect until the expiration or other termination of each of the Amended Agreements, and
until such time as all Indebtedness of User to Trust and City is paid and/or performed in
full.
Guarantor shall furnish to Trust and City, within ninety-five (95) days after the close of
its fiscal year a copy of its Annual Report on Form 10-K containing the balance sheet of
Mayl7Guaranty 2
O
Guarantor as of the close of such fiscal year and statements of income, stockholder's
equity and cash flows for the year then ended and the opinion thereon by Guarantor's
independent public or certified public accountants. Financial statements of Guarantor
must be prepared in accordance with generally accepted accounting principles. Each
provision hereof is intended to be severable and the invalidity or illegality of any portion
of this Guaranty shall not affect the validity or legality of the remainder hereof.
GUARANTOR HEREBY VOLUNTARILY, KNOWINGLY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING ARISING UNDER THIS GUARANTY OR CONCERNING THE
INDEBTEDNESS AND/OR ANY COLLATERAL THEREFOR OR PERTAINING TO
ANY TRANSACTION RELATED TO OR CONTEMPLATED THEREBY,
REGARDLESS OF WHETHER SUCH ACTION OR PROCEEDING CONCERNS
ANY CONTRACTUAL OR TORTIOUS OR OTHER CLAIM.
Any notice or demand given or made under this Guaranty shall be given or made by
mailing the same by registered or certified mail to the party to whom the notice or
demand is given or made at the address of such party set forth below, or such other
address as such party may hereafter designate by notice given as provided in this
paragraph.
The address for notices to Guarantor are:
The addresses for notices to City and to Trust are:
This Guaranty may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute but one instrument.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty on the date set forth
below the signature line, to be effective on the date of the Third Amendment to the Use
Agreement and the Amendment to the Valet Parking Concession Agreement.
Signed, sealed and delivered
in the presence of:
Mayl7Guaranty
GUARANTOR:
02- 623
3
[CORP. NAME]
CONCORDE GAMING CORPORATION
By:
Print Name: Print Name:
Its:
Executed on , 2002
MayMuaranty 4
02- 623
"EXHIBIT An
THIRD AMENDMENT TO USE AGREEMENT
THIS THIRD AMENDMENT TO USE AGREEMENT (hereinafter called the "Third
Amendment"), made and entered into this day of May, 2002, by and between Bayfront
Park Management Trust, a limited agency and instrumentality of the City of Miami (the Trust),
and Concorde Cruises, Inc. , a South Dakota corporation authorized to do business in the State of
Florida, and the successor -in -interest, by operation of law, of Bayfront Ventures (hereinafter
called the "User").
WHEREAS, on June 19, 1997 the Board of Trustees of the Trust adopted a Resolution
relating to the Trust's favorable determination to approve the transfer of the interest of Leo
Equity Group, Inc., in User to Concord Gaming Corporation, which interest was subsequently
transferred by Concorde Gaming Corporation to Concorde Cruises Inc. on July 6, 1998 and
approved by the Trust by Transfer, Assumption and Consent to Transfer of Use Agreement dated
March 28, 2000; and
WHEREAS, on June 25, 1997 the Trust executed a Use Agreement (the "Use
Agreement") which was approved by the City of Miami Commission, the U.S. Army Corps of
Engineers and the Oversight Committee established by the Governor of the State of Florida; with
Bayfront Ventures, a Florida joint venture consisting of Leo Group, Inc. and Goldcoast
Entertainment Cruises, Inc.; and
WHEREAS, on September 26, 1997 the Trust and User executed an Amendment To Use
Agreement which, among other things, changed the Commencement Date of the Use Agreement
to 12:01 A.M. on October 1, 1997; and
WHEREAS, on March 31, 2000 Concorde Cruises Inc. purchased all of the interest
owned by Gold Coast Entertainment Cruises Inc. in and to the general partnership called
Bayfront Ventures, which partnership, by operation of law, was dissolved upon Concorde
Cruises acquiring 100% of the interests in said partnership; and
WHEREAS, on or about September 2001 the Trust and User executed an undated
document entitled "Amendment No. 2 to Use Agreement Between Bayfront Park Management
Trust and Bayfront Ventures" identified in City of Miami Resolution No. 01-879 passed and
adopted September 13, 2001 which amended certain provisions of the Use Agreement relating to
fueling and to charitable cruises; and
WHEREAS, the Trust and the User wish to further modify and amend the Use
Agreement as hereinafter set forth (as used in this Third Amendment the terms "Use
Agreement", and "Agreement" may be used interchangeably and shall mean the Use Agreement
dated June 25, 1997 and all subsequent amendments and modifications thereto, including this
Third Amendment. The term "Amended Agreements" shall mean shall the Use Agreement and
all amendments thereto and the Valet Parking Concession Agreement described in Section 2
herein, and all amendments thereto).
02- 623
NOW, THEREFORE, in consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree to
be legally bound, and hereby agree as follows:
1. The above recitals are true and correct and are hereby incorporated and referenced as
if fully set forth herein. Unless otherwise indicated, all capitalized terms used in this Third
Amendment shall have the respective meanings given them in the Use Agreement, as amended.
2. The Use Agreement is amended in the following respects:
A. Section 2, entitled "Facility" shall be amended by deleting subsection (b) in its entirety and
by adding the following at the end of the section:
"Trust agrees that the dock space situated in the southerly portion of the Park, as shown
in the Site Plan, shall not be used for gaming purposes so long as the User is not in default of any
of the terms of the Use Agreement, as amended, or of the Valet Parking Concession Agreement
between the Trust and Bayfront Valet, L.C., dated December 8, 1998, as amended, or of the
Guaranty."
B. Section 3, entitled "Term", is hereby amended as follows:
Sub -section 3(b) shall be amended by adding the following at the end of the sub -section:
"Notwithstanding the deadline for User's exercise of the Extension Option contained
herein, User hereby elects to extend the Term for one (1) additional five (5) year term (the
"Extension Term") and the Trust hereby accepts such extension."
C. Section 4, entitled "Fees; Letter of Credit", is hereby amended as follows:
1. Sub -section 4(a) is hereby deleted in its entirety and shall now read as follows:
a. For the Initial Term, User shall pay the Trust fees (the "Fees") for the use of
the Facility in the following annual amounts:
Contract
Use Fee -
Use Fee -
Advertising
Total
Year
North Dock
South Dock
Fee
Annual Fee
1
$350,000
$25,000
$25,000
$400,000
2
$400,000
$25,000
$25,000
$450,000
3
$400,000
$25,000
$25,000
$450,000
4
$425,000
$25,000
$25,000
$475,000
5
$425,000
$25,000
$25,000
$475,000
Total
May17-5 15 ThirdAmend
$2,250,000
0-- 623
2
User shall pay One Hundred Fifty Thousand Dollars ($150,000.00) (the "Initial Payment") on
the date of the approval of this Agreement (the "Approval Date") by (i) the U.S. Army Corps of
Engineers, (ii) the Miami City Commission and (iii) the Oversight Committee established by the
Governor of the State of Florida. One Hundred Thousand Dollars ($100,000.00) of the Initial
Payment shall be applied to the annual fees for the first year of the Initial Term. The remaining
Fifty Thousand Dollars ($50,000.00) is in consideration for the deferral of the Commencement
Date to September 1,1997, as provided in paragraph 3(a). Except for the Initial Payment, User
shall pay the annual fees in twelve (12) equal monthly payments of Thirty -Nine Thousand Five
Hundred Eighty -Three Dollars And Thirty -Three Cents ($39,583.33). On each anniversary of
the Commencement Date, User shall pay to the Trust the amount of $158,333.32, reflecting
payment for the first month (October) and payment for the last three months (July, August and
September) of the new Contract Year. User shall receive a credit for the last three months'
payment of said Contract Year. In the event User desires to use more than Twenty -Five
Thousand Dollars ($25,000.00) of annual advertising, User shall pay for the additional
advertising at the Trust's prevailing rates.
2. Sub -section 4(b) is hereby deleted in its entirety and all references to the Letter of Credit
contained in the Agreement are hereby voided and rendered inoperable. Sub -section 4(b) shall
now read as follows:
b. "Attached hereto and incorporated by reference in this Agreement is a
Guaranty of same date executed by Concorde Gaming Corporation, a corporation existing under
the laws of the State of Colorado, in favor of the Trust and of the City of Miami wherein
Concorde Gaming Corporation guarantees the performance and payment obligations of User (the
"Guaranty"). Upon the expiration or other termination of each of the Amended Agreements, as
defined in the Guaranty, and the payment in full and performance in full of all Indebtedness (as
defined in the Guaranty) of User to Trust, Trust shall sign a release."
3. Sub -section 4(c) is hereby deleted in its entirety and shall now read as follows:
c. "Commencing October 1, 2003 and continuing throughout the remainder of the
Extension Term, the annual Fees shall be increased annually, effective on the first day of each
Contract Year, by an amount equal to two percent (2%) of the Fees payable during the preceding
Contract Year. For the Additional Term the annual Fees shall be increased annually, effective on
the first day of the first Contract Year of the Additional Term, by an amount equal to four
percent (4%) over the Fees during the last year of the Extension Term, and on the first day of
each subsequent Contract Year of the Additional Term, by an amount equal to four percent (4%)
over the Fees during the preceding Contract Year of the Additional Term."
D. Section 6, entitled "Security Deposit" is hereby amended so that the sentence which reads
"The Security Deposit shall secure only the non -monetary Events of Default" is hereby deleted
and shall now read as follows:
"The Security Deposit shall secure both monetary and non -monetary Events of
Default."
May17-5 15 ThirdAmend 0 f 623 3
V
E. Section 17, entitled "Approval of Vessels" is hereby deleted in its entirety and shall now read
as follows:
"The Trust shall have the right to approve the vessels docked by User at the North Dock,
which approval, so long as the vessel does not exceed 260 feet in length, shall not be
unreasonably withheld or delayed. The Trust confirms it has approved the "Bayfront Princess,"
a 230 -foot yacht. User shall have only the right to operate one gaming vessel from the North
Dock. User shall not be prohibited from docking other non -gaming vessels from the North Dock
as long as they do not dock there overnight."
F. Section 26, entitled "Utilities" is hereby amended by adding the following at the end of the
section:
"In the event the User establishes a shore -power electric connection to provide
electrical service to the Facility, the reasonable cost of the connection shall be
credited to the monthly payments due from User under Section 4 above. Said
credit shall be amortized over the 60 months contained within the Extension Term
described in Section 3 (b) above, but shall not be refunded to User in the event of
a default or earlier termination of the Use Agreement, as amended. User shall pay
for all electric power consumed by User."
G. Section 32, entitled "Termination Rights" is hereby deleted in its entirety and shall now read
as follows:
32. Termination of Rights.
a. User shall have the right to terminate the Use Agreement, as amended, on
thirty (30) days' written notice to the Trust if, because of governmental action, User is not legally
permitted to operate an offshore gaming vessel. If, because of governmental action, casino
gaming becomes legal in the State of Florida and User's passenger count declines to less than
eighty percent (80%) of the passenger count in the prior Contract Year, User shall have the right
to negotiate a just termination fee for the right to terminate the Use Agreement, as amended,
which termination fee will not be less than one year's fees. User's obligation to pay any
termination fee so agreed upon shall be secured by the Guaranty.
b. Early Termination Procedure
(1) Provided that User is not in default under the terms of the Amended
Agreements, as defined in the Guaranty (hereinafter defined), User may at any time terminate
the Use Agreement, as amended, by giving written notice of not less than twenty-four (24)
months (such period, the "Notice Period") to Trust of User's intent to terminate the Use
Agreement, as amended, and vacate the Facility. Notwithstanding User's termination of the Use
Agreement, as amended, pursuant to this Section 32(b), User may, at User's sole option,
continue to occupy the Facility for a period (the "Post -Notification Use Period") not to exceed
eighteen (18) months from User's written notification to Trust of its election to terminate, during
which Post -Notification Use Period User shall continue to make monthly payments to Trust
May17-5 15 ThirdAmend 02— 623 4
pursuant to the terms and conditions hereof, as such monthly payments come due, and shall
continue to comply with all non -monetary obligations.
(2) Upon User's vacating the Facility after a termination pursuant to this
Section 32 (b) whether such vacating occurs (i) immediately, (ii) at some point prior to the
running of the Post -Notification Use Period, or (iii) upon the running of the Post -Notification
Use Period, then, throughout the remainder of the Notice Period, User shall continue to make
monthly payments to Trust pursuant to the terms and conditions hereof, as such monthly
payments come due, but shall have no other obligation hereunder, of any kind whatsoever, with
respect to the Facility, except that User shall complete repairs, replacement and/or maintenance
of any portion of the Facility commenced, or becoming due under the terms of the Use
Agreement, as amended, prior to User's vacating the Facility.
(3) In the event that User terminates the Use Agreement, as amended,
pursuant to this Section 32 (b), User's maximum liability to Trust under the terms of the Use
Agreement, as amended, shall be an amount not greater than the sum of (i) all payments
remaining due under this Third Amendment and the Use Agreement, as amended, for the
duration of the Notice Period; (ii) any accrued but unpaid sums owed by User to Trust with
respect to payments already due; (iii) full compliance by User of all non -monetary obligations
while User is in possession of the Facility, and (iv) upon User's vacating the Facility, the value
of any repairs, replacements and/or maintenance to the Facility commenced and not completed,
or becoming due under the terms of the Use Agreement, as amended, prior to User's vacating
the Facility.
H. Section 35 entitled "Notices" is hereby amended to provide notices to the following
individuals:
As to User:
With a copes:
As to the Trust:
Timothy F. Schmand
Interim Executive Director
301 West Biscayne Boulevard
Miami, Florida 33132
With copies to:
City Manager
444 S.W. 2nd Avenue
Miami, Florida 33130
May17-5 15 ThirdAmend 5
City Attorne�
444 S.W. 2° Avenue
Miami, Florida 33130
I. The amendments contained herein shall apply and take effect retroactively to October 1, 2001.
J. Except as specifically provided herein, all of the terms and provisions of the Use Agreement,
as amended, shall remain in effect.
USER
Concorde Cruises, Inc., a South Dakota corporation,
authorized to do business in the State of Florida
LI -M
Jerry Baum, President
SECRETARY
this day of , 2002
Printed Name:
WITNESSES:
Printed Name:
Printed Name:
TRUST
ATTEST: Bayfront Park Management Trust, a limited agency
and instrumentality of the City of Miami, by and
through its Board of Directors
By:
Timothy F. Schmand, Interim Director
this day of , 2002
May17-5 15 ThirdAmend 623
23 6
APPROVAL OF THE CITY OF MIAMI
Witnesses:
Printed Name:
Printed Name:
ATTEST:
By:
Priscilla A. Thompson, City Clerk
THE CITY OF MIAMI,
A municipal corporation of the
State of Florida,
By:
Carlos A. Gimenez, City Manager
APPROVED AS TO INSURANCE APPROVED AS TO FORM AND
REQUIREMENTS: CORRECTNESS:
By: By:
Sue Weller, Alejandro Vilarello, City Attorney
Acting Risk Management Administrator
Department of General Services Administration
May17-5 15 ThirdAmend
02- 623
7
TO: Honorable Mayor and Members
o e City Commission
FROM: i thy F. Schmand
Interim Director
RECOMMENDATION:
CA -11
DATE: May 28, 2002
SUBJECT: Resolution Authorizing
the City Manager to execute the
Third Amendment to the use -
agreement between Bayfront Park
Management Trust and Bayfront
Ventures.
It is respectfully recommended that the City Commission adopt the attached resolution
authorizing the City Manager to execute the Third Amendment to the use -agreement between
Bayfront Park Management Trust and Bayfront Ventures in substantially the attached form, to
amend provisions relating to payment, add an additional requirement of a guarantee, delete the
requirement of a letter of credit and provide for the exercise of the extension term.
BACKGROUND:
The Bayfront Park Management Trust ("Trust") has managed the Mildred and Claude Pepper
Bayfront Park ("Bayfront Park") with the goal of ensuring maximum community involvement.
The Trust and Concorde Cruises, Inc., a South Dakota Corporation, d/b/a Bayfront Ventures,
formerly known as Bayfront Ventures, a Florida Limited Partnership ("User"), entered into a Use
Agreement dated June 25, 1997 ("Agreement'), for the operation of a casino gaming vessel at
Bayfront Park, as amended on September 26, 1997. The parties now wish to amend the
Agreement to amend provisions relating to payment, to add a provision requiring the guaranty
attached as "Exhibit 1" to the Third Amendment to the Agreement which is attached hereto as
"Exhibit A," (the "Third Amendment'), delete the letter of credit requirement, and provide for
the exercise of the extension term. The Trust approved the Third Amendment, in substantially
the attached form, on January 29, 2002. The Trust and the Interim Director of the Trust
recommends approval of the Third Amendment.
FISCAL IMPACT
The Third Amendment to the use -agreement contemplates the following: Concorde Cruises will pay
the Trust $475,000 annually, divided over twelve monthly payments, for the right to operate the
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02- 623
gaming vessel from Bayfront Park. There are two five-year extensions contemplated in the contract.
During the first five-year extension, the rent will increase by 2% annually. instead of 4% as
contemplated in the original agreement. In the second five-year term, the rent will increase 4%
annually, instead of 8% as contemplated in the original agreement. Concorde Cruises has agreed that
the $100,000 security deposit for non -monetary default can be used for monetary and non -monetary
default. Concorde Cruises will provide the Trust with a rolling twenty-four (24) month Guaranty
from their parent company in lieu of the twenty-four (24) month Irrevocable Letter of Credit. In the
event that Concorde Cruises installs shore -side power at the park, they will be credited the
reasonable cost of that shore power installation, amortized over the 60 months of the first extension
term of the agreement. Concorde Cruises will be responsible for the cost of the power. The Third
Amendment also includes a twenty-four (24) month termination procedure and the return of Bayfront
Park's South End Dock to the Trust.
TS/ts
Page 2 of 2
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