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HomeMy WebLinkAboutR-85-1029J-85-1027 RESOLUTION NO.SS —1024') A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDMENT TO THE MIAMARINA AGREEMENT, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, WITH BAYSIDE CENTER LIMITED PARTNERSHIP TO INCORPORATE TERMS AND CONDITIONS REQUIRED TO ACCOMMODATE ADVANCE PAYMENT OF RENTAL FUNDS TO THE CITY BY BAYSIDE CENTER LIMITED PARTNERSHIP FOR THE PURCHASE OF ALL RIGHTS, TITLE AND INTEREST TO THE NEW WORLD MARINAS, INC. AGREEMENT FOR THE MANAGEMENT OF MIAMARINA. NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA; Sectior 1. The City Manager is hereby authorized to ' execute an Amendment to the Agreement with Bayside Center I Limited Partnership, in a form acceptable to the City Attorney, r to incorporate terms and conditions required to accommodate advance payment of rental funds to the City by Bayside Center Limited Partnership for the purchase of all rights, title and interest to the New World Marinas, Inc. Agreement for the management of City -owned Miamarina. PASSED AND ADOPTED this loth day of OCTOBER 1985. MAURICE A. FERRE M URI E A. E RE, MAYOR AT S ;rY CLERK PREPARED AND APPROVED BY: i t'Tv-am f , ASSISTANT CITY ATTORNEY APPR/0.1r D� TO FORM AND CORRECTNESS: LUCIA A. D'OUGHERTY CITY ATTORNEY CITY COMMISSION MEETING OF OCT 10 tolls X4Igo.s +�'029 CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM TO. Honorable Mayor and Members of the City Commission Sergio Pereira FROM City Manager / OATS- October 3, 1985 FILE: 33 SUBJECT Amendment to City/Bayside Miamarina Agreement For City Commission REFERENCES Meeting of 10/ 1O/85 ENCLOSURES. Resolution It is recommended that the City Commission adopt the attached Resolution authorizing the City Manager to execute an Amendment in aformaccepta6re to the City Attorney, to the Miamarina _Agreement with Bayside enter Limited �Partnersnhi to provide for t e advance payment or -rental funds to the y by_ the Bayside Center Limite Partnership to purchase all rights, title and interest in New World Marinasq inc.,'s reement for the management of the iamarina. The purpose of the resolution is to incorporate terms and conditions required to accommodate an amendment to the Miamarina Agreement with Bayside Center Limited Partnership providing for advance payment of rental funds to the City by the Bayside Center Limited Partnership for the purchase of all rights, title and interest in the Agreement for the management of Miamarina. The City and Bayside Center Limited Partnership desire to amend the provisions of the Miamarina Agreement as set forth therein. It is recommended that the attached Resolution be adopted, authorizing the City Manager to execute an Amendment to the Miamarina Agreement with Bayside Center Limited Partnership. SP/JG/bf 8 '-1029 e AMENDED AND RESTATED MIAMARINA AGREEMENT THIS AGREEMENT entered into this day of October, 1985 by and between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership having an office at 330 Biscayne Boulevard, Miami, Florida (hereinafter referred to as "Bayside") and THE CITY OF MIAMI, a municipal corporation of the state of Florida having an office at 3500 Pan American Drive, Miami, Florida (hereinafter referred to as the "City"). WITNESSETH: WHEREAS, on January 14, 1985, the City and Bayside entered into a lease for development of a waterfront specialty center (as amended hereinafter referred to as "Retail Lease") and a lease for development of a parking facility (as amended hereinafter referred to as "Garage Lease") (the Retail Lease and Garage Lease collectively referred to as the "Ground Leases") pursuant to which the City leased to Bayside certain real property located in Bayfront Park, Miami, Florida, which property is more particularly described in the Ground Lease (hereinafter referred to as the 'Bayside Property"); WHEREAS, pursuant to the terms of the Ground Leases, Bayside will construct, operate and maintain the Bayside Specialty Center and the Parking Garage (as such terms are defined in the Ground Leases) on the Bayside Property; WHEREAS, Miamarina is a marina containing slips for approximately 200 boats located adjacent to the Bayside Property and was previously managed and operated pursuant to the terms of a certain management agreement (hereinafter 85 -1a29 referred to as the "Management Agreement") dated June 4, 1981 between the City and New World Marina, Inc. (hereinafter referred to as the "Existing Manager"); WHEREAS, on October _, 1985, the City and the Existing Manager entered into an agreement of purchase and sale (the "P&S" Agreement) pursuant to which the City agreed to purchase all of the right, title and interest of the Existing Manager in and to the Management Agreement for a purchase price of $1,675,000 (the "Purchase Price") and upon such sale immediately terminated same; WHEREAS, Bayside and the City have reached certain agreements pursuant to which Bayside will make an advance rental payment under the Ground Leases to the City which the City may apply to the Purchase Price ; WHEREAS, the City and Bayside have agreed that the boundaries of i Miamarina shall be reconfigured to include the area designated as Miamarina on Exhibit B attached hereto (such area being hereinafter referred to as the "Marina") and that the Marina will be operated and maintained by the City; WHEREAS, Bayside and the City have reached certain agreements with respect to the standards of management, operation and maintenance of the Bayside Specialty Center and the Parking Garage by Bayside and the standard of maintenance of Bayfront Park by the City, which standards are set forth in the Ground Leases and the City and Bayside are desirous of entering into this Agreement in order to more particularly define the standards of management, operation and maintenance to be complied with by the City in connection with its management and operation of the Marina. The City and Bayside agree that both parties are vitally interested in the successful integration of the Marina's management, maintenance, promotion and operation with that of the Bayside Specialty Center; - 2 - 8S -1029 NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the City and Bayside covenant and agree as follows: 1. The City agrees that it will manage, operate and maintain the Marina to a quality consistent with other first class marinas in the Miami - metro area and to a comparable level of quality commensurate with the quality and character of the management, operation and maintenance of the Bayside Specialty Center. Such management, operation and maintenance of the Marina by the City shall in all respects comply with the standards of operation of Miamarina (hereinafter referred to as the "Standards") annexed hereto as Exhibit A and incorporated herein. 2. The City shall maintain the structural integrity of the Marina including without limitation, the piers, docks, pilings, quays, sea wall and the original design depth of the Marina. In connection therewith the City shall, at its sole cost and expense, promptly retain a qualified marina engineer to survey the Marina and recommend such actions, both immediate and long term, remedial and preventative, which the City should take to assure or restore such integrity and depth. Implementation of any or all of the recom- mendations of such engineer shall be in the sole and absolute discretion of the City, provided, however, that the City agrees to comply with such recommenda- tions of the aforesaid engineer which are then required to be complied with or make such other changes or repairs which the City deems necessary in order to avoid the City's becoming in default of its standards of management, operation and maintenance as set forth in this Agreement or in the Ground Leases. 3. The City shall carry such property and liability policies with respect to the Marina and the operation thereof as the City Manager may from time to time reasonably deem prudent and as shall be consistent with the -3- 8S --1029 eN letter agreements to be signed by the Risk Managers of Bayside and the City regarding the types and amounts of insurance policies concerning property damage and liability covering the Marina and the Bayside Specialty Center. Within thirty (30) days of the date hereof the Risk Manager for the City and Bayside shall enter into such letter agreements. If the Marina shall at any time during the term hereof be damaged or destroyed by fire or other insured casualty, the City shall, pursuant to the terms and conditions of the Ground Leases diligently repair and/or restore the Marina to the state same was in immediately prior to such casualty. The City will, from time to time ano upon thirty (30) days written request, provide Bayside with copies of certificates evidencing the policies of insurance required to be carried by the City hereunder. 4. The City shall, at its own cost and expense, install and maintain along the Marina piers architectural lighting similar in quality and lighting levels and consistent in design to the outdoor promenade and pier park lighting to be installed at the Bayside Specialty Center. The City shall coordinate the installation of such lighting with the utility work being conducted by Bayside on the Bayside Property. Bayside shall have the right to review and reasonably approve the City's lighting plans and specifications prior to installation, which approval may not be withheld if such plans and specifications are substantially in accordance with the requirements of this section. 5. The City shall use reasonable efforts to obtain approvals for and install baffling devises in certain locations on the proposed port bridge in order to significantly reduce the effect on the Marina of "surge" from 4 vessels passing the Marina on the adjacent waters of Biscayne Bay. Bayside shall have the right to review and approve the design and location of such devices prior to installation, which approval shall not be unreasonably -4- withheld. Bayside and the City shall enter into a letter agreement within 90 days of the date hereof which shall set forth an agreed upon schedule for the City's installation of the improvements set forth in section 4 and 5 hereof to assure that same shall be installed prior to the opening date of the Bayside Specialty Center. 6. The City shall enter into an agreement with Bayside to permit the ship Bounty to be moored at and to operate from the Biscayne Bay sea wall (such agreement may provide for the reimbursement to the City of costs and expenses incurred by the City as a result of the operation of the Bounty from said seawall). Such long term agreement shall be on terms and conditions reasonably satisfactory to the City Manager and Bayside. From time to time, upon request of Bayside, the City will enter into agreement with other visiting ships, ships associated with the pier park, the water taxi and paddle boat operations originated by Bayside with respect to the use by such ships of the Biscayne Bay seawall on terms and conditions reasonably satisfactory to Bayside and the City. The agreements between the City and Bayside referred to I in this Paragraph 6 shall be subject to review and appropriate revision by the City Attorney's Office. 7. The failure of either party hereto to perform any of the covenants, conditions and agreements of this Agreement which are to be performed by such party and the continuance of such failure for a period of sixty (60) days after notice thereof in writing from the non -defaulting party (which notice shall specify the respects in which the non -defaulting party contends that the defaulting party has failed to perform any of such covenants, conditions and agreements) unless such default be one which cannot be cured within sixty (60) days and the defaulting party within such sixty (60) day period shall have commenced and thereafter shall continue to -5- 8S-1029 diligently to prosecute all actions necessary to cure such default, such failure shall constitute an "Event of Default". If an Event of Default shall occur, the non -defaulting party shall have the right to pursue any of the following remedies: (i) the right to a writ of mandamus, injunction or other similar relief, available to it under Florida law against the defaulting party, including if the defaulting party is the City, any or all of the members of its governing body, and its officers, agents, or representatives provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of the City's obligations to Bayside hereunder; and (ii) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from such default. For the purposes of any of the provisions of the Agreement, neither party shall be considered in default of any of its obligations hereunder if the compliance with such obligation is delayed or rendered impossible to perform as a result of an Unavoidable Delay (as defined in the Ground Leases). 8. This Agreement shall be governed by the laws of the state of Florida and shall be subject to and shall be interpreted to effectuate its compliance with the Charter of the City of Miami, the City of Miami Code and the Dade County Charter and Code and any conflicts between this Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be illegal, invalid or unenforceable because of present or future laws or any -6- S" -1a29 rule or regulation of any governmental body or entity or becomes unenforceable because of judicial construction of the remaining terms, covenants and conditions of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 9. No member, official representative or employee of the City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or employee 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 is, directly or indirectly, interested. No member, official, representative or employee of the City or the City Manager shall be personally liable to Bayside or any successor in interest in the event of default or breach by the City or the City Manager or for any amount which may become due to Bayside or its successor or on any obligations under the terms of this Agreement. 10. This Agreement shall remain in full force and effect for so long as both of the Ground Leases shall remain in full force and effect. The obligations of the City to manage, operate and maintain the Marina pursuant to this Agreement shall commence on the date hereof, provided, however, that Bayside and the City agree that the Marina shall not be open for business with the general public during the period that the Bayside Specialty Center and the Parking Garage are under construction or restoration if such construction or w restoration would be adversely affected by the Marina being open for business. Bayside may not assign its rights under this Agreement except in -7- K-1a29 F, connection with an assignment of its interest under the Ground Lease which is permitted pursuant to the terms thereof. 11. If the City shall so elect, the City may, in compliance with its Charter, Code and applicable law, enter into a management agreement with a third party that is an experienced marina operator for the operation, management and maintenance of the Marina by such party (hereinafter referred to as a "New Operator"). If the City shall elect to cause a New Operator to operate the Marina, the City shall implement its normal request for proposal procedures and Bayside agrees that it will, in good faith, submit a proposal with respect to same in accordance with such procedures. Any management agreement to be entered into by the City with a New Operator must contain provisions pursuant to which the New Operator shall agree for the term of the new management agreement to perform, among other things, the obligations of the City under this Agreement. 12. Bayside agrees to make an advance rental payment under the Ground Leases of One Million Six Hundred Seventy -Five Thousand Dollars ($1,675,000) (hereinafter referred to as "Advance Rental"). Bayside agrees that the City may, at its option, apply the Advance Rental to the payment of the Purchase Price. The City and Bayside agree that should the New Operator be a subsidiary or affiliate of The Rouse Company, that the parties will amend the Ground Leases to change the Advance Rental (with interest thereon at % above the prime rate of Chase Manhattan Bank (N.A.) compounded annually and based upon a 360 day year ("Interest")) to an additional rental payment under the Lease Agreements and will readjust all previous credits of Advance Rental accordingly with Interest. The City and Bayside agree that should the New Operator be the City or any person or entity who is not a subsidiary or affiliate of The Rouse Company, the provisions under the Ground Leases relating - 8 - Sv -1029 to Advance Rental will not be changed. As an inducement to make the Advance Rental Payment, contemporaneously with the execution of this Agreement the City Attorney will deliver a legal opinion to Bayside in a form reasonably satisfactory to Bayside that the payment of Advance Rental, the use of such funds to pay the Purchase Price and the offset under the Ground Leases will not violate any existing state or local laws, rules or regulations and that the City has the due power and authority to offset the Advance Rental as set forth in this Agreement and the Ground Leases. 13. Any notice or communication under this Agreement by either the City or the City Manager, on the one hand, to Bayside, or, on the other, by Bayside to the City or the City Manager shall be deemed sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: If to Bayside: General Counsel Bayside Center Limited Partnership c/o The Rouse Company 10275 Little Patuxent Parkway Columbia, Maryland 21044 If to the City: The City of Miami c/o the City Manager 3500 Pan American Drive Miami, Florida 33131 Either party may change the notice addresses above set forth by giving notice in writing of such change of address to the other party in accordance with the terms hereof. 14. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and such counterparts shall constitute one and the same instrument. 9 - 9 - S� �'1�U29 15. All of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the City and Bayside. 16. Nothing contained in this Agreement shall alter, modify, supplement or amend the terms and provisions of the Ground Leases. 17. The City and Bayside shall prior to the Opening Date enter into a lease (the "Dockmaster Lease") pursuant to which Bayside shall make available to the City a maximum of 300 feet of office space at the improvements to be constructed by Bayside at the Marina for use as a dockmaster's office. The Dockmaster Lease shall provide that the City shall not be obligated to pay basic rent, common area maintenance or other rents or additional rents for such space but shall be responsible for utility and insurance payments. The Dockmaster Lease shall be in the standard form of lease entered into between Bayside and tenants at the Bayside Specialty Center and shall provide that the rental concessions therein contained shall be for the sole benefit of the City and shall not be available to any other party that may commence to operate the Marina. 18. The obligations and liability of the City pursuant to this Agreement shall terminate upon the date of the termination of the Retail Lease or any substitute ground lease entered into pursuant to Article VI thereof. IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Agreement to be signed in its name by its Vice President and its corporate seal to be hereunto affixed and duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI has caused this Agreement to be signed in its name by Sergio Pereira, the CITY -10- 0 ki �1�2,g ."\ MANAGER, and duly attested to by Matty Hirai, the CITY CLERK, on the day and year first hereinabove written. ATTEST: BAYSIDE CENTER LIMITED PARTNERSHIP, A MARYLAND LIMITED PARTNERSHIP BY: ROUSE-MIAMI, INC., A MARYLAND CORPORATION, GENERAL PARTNER BY: Vice President Assistant Secretary THE CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA BY: Matty Hirai, Sergio Pereira, City Manager City Clerk APPROVED AS TO FORM AND CORRECTNESS: Lucia Allen Dougherty, City Attorney 990G/496A -11- S� -1029 EXHIBIT A STANDARDS OF OPERATION AND MAINTENANCE FOR MIAMARINA 1. No supplies or provisions for boats, including beer or fuel shall be sold at Marina except in quantities and a manner reasonably permitted by Bayside. 2. Boat repairs shall not be permitted at the Marina. 3. Janitorial maintenance and security of the Marina, including the interior waters, dockage along quay, docks, pilings, sea walls, lighting, charter fishing boat facilities and other facilities thereof shall be commensurate with the level of janitorial maintenance complied with by Bayside at the Bayside Specialty Center and shall include regular daily trash pick-up and removal process, removal of floating debris and 24-hour security. 4. No "for sale" or "for rent" signs shall be permitted to be displayed on the Marina premises or on any vessel using the Marina. All Marina signage, exterior or visible from the exterior, including, but not limited to signage to be installed by charter or commercial operators using the Marina, if any, shall be subject to the prior approval of Bayside, which shall not be unreasonably withheld. 5. No slips in the Marina shall be licensed for the purpose of the storage of vessels. 6. All dockage agreements for slips in the Marina shall be in form and substance and shall contain rules and regulations reasonably satisfactory to Bayside and the City. 7. All Marina slips adjacent to the Marina Promenade (except the area shown as crosshatched on Exhibit B which area is reserved for the dockage of charter fisherman) shall be rented at rates which discourage long term use. No commercial fisherman shall operate from slips adjacent to the Marina Promenade. 8. If the City shall elect to license slips to charter fisherman, the City shall install appropriate facilities (e.g. fish cleaning; table boxes; ticket facilities) for such fisherman. Bayside shall have a reasonable right of approval with respect to the design and location of such facilities. 9. Bayside will at all times afford the City reasonable means of ingress in, to and over the Bayside Property to enable the City to perform its repair and maintenance obligations hereunder. 10. With the exception of the occupancy rights which may be granted by the City to charter fisherman at the Marina, the City agrees that Bayside may from time to time cause the Marina to be closed to all 8S -1029 WN i other occupants or licensees of slips at the Marina for periods not to exceed seventy-two consecutive hours. In no event may the number of days that the Marina is so closed exceed seven (7) days for a single calendar year. Bayside shall at least six (6) months prior to the Opening Date notify the City of the dates that Bayside requests that the Marina be closed pursuant to the terms hereof for the period from the Opening Date until the first day of the first Rental Year (as defined in the Ground Lease for the Bayside Specialty Center). Thereafter, Bayside shall give the City at least six (6) months written notice before the first day of each Rental Year of the dates that Bayside desires to cause the Marina to be closed during such Lease Year. Bayside shall be responsible for the payment of all janitorial maintenance and trash removal expenses with respect to the Marina during such periods and shall also clear the waters of the Marina of all debris after such periods. 11. The parties have agreed to negotiate in good faith a reasonable allocation of the costs and expenses of janitorial maintenance and trash removal services between the common areas of the Bayside Specialty Center and the Marina. If the City and Bayside are unable to reach an agreement with respect to same, the matter shall be submitted to arbitration pursuant to the provisions relating to same contained in the Ground Leases. Such negotiations shall commence within twelve (12) months of the Opening Date and, if the matter is not resolved within six (6) months of the Opening Date, it shall be submitted to arbitration, as aforesaid. 12. The City shall, during the term of this Agreement, on a regularly scheduled basis reasonably acceptable to Bayside, clear the Marina waters of debris in order that the appearance of the Marina be in keeping with the maintenance standards followed by Bayside in connection with the Bayside Specialty Center. 990G/496A-13 A - 2 �S -1a29 A I_IA r..IGIJnC _^. C nci�r"At' �-I1�R) a rp F-h z MIAMARINA AGREEMENT THIS AGREEMENT entered into this day of October, 1985 by and between BAYSIDE CENTER LIMITED PARTNERSHIP, a Maryland limited partnership having an office at 330 Biscayne Boulevard, Miami, Florida (hereinafter referred to as "Bayside") and THE CITY OF MIAMI, a municipal corporation of the state of Florida having an office at 3500 Pan American Drive, Miami, Florida (hereinafter referred to as the "City"). WT TAICCC'CT U. WHEREAS, on January 14, 1985, the City and Bayside entered into a lease for development of a waterfront specialty center (as amended hereinafter referred to as "Retail Lease") and a lease for development of a__park M .f_acili.ty—las_amende(;L hereinafter_ referred to as "Garage Lease") (the Retail Lease and Garage Lease collectively referred to as the "Ground Leases") pursuant to which the City leased to Bayside certain real property located in Bayfront Park, Miami, Florida, which property is more particularly described in the Ground Lease (hereinafter referred to as the "Bayside Property"); WHEREAS, pursuant to the terms of the Ground Leases, Bayside will construct, operate and maintain the Bayside Specialty Center and the Parking Garage (as such terms are defined in the Ground Leases) on the Bayside Property; WHEREAS, Miamarina is a marina containing slips for approximately 200 boats located adjacent to the Bayside Property and was previously managed and operated pursuant to the terms of a certain management agreement (hereinafter B�-1029 referred to as the "Management Agreement") dated June 4, 1981 between the City and New World Marina, Inc. (hereinafter referred to as the "Existing Manaoer"); WHEREAS, on October 1985, the City and the Existing 'tanager entered into an agreement of purchase and sale (the "P&S" Agreement) pursuant to which the City agreed to purchase all of the right, title and interest of the Existing Manager in and to the Management Agreement for a purchase price of $1,675,000 (the "Purchase Price") and upon such sale immediately terminated same; WHEREAS, Bayside and the City have reached certain agreements pursuant to which Bayside will make an advance rental payment under the Ground Leases to the City which the City may apply to the Purchase Price ; WHEREAS, the City and Bayside have agreed that the boundaries of Miamarina shall be reconfigured to include the area designated as Miamarina on Exhibit B attached hereto (such area being hereinafter referred to as the "Marina") and that the Marina will be operated and maintained by the City; WHEREAS, Bayside and the City have reached certain agreements with j respect to the standards of management, operation and maintenance of the Bayside Specialty Center and the Parking Garage by Bayside and the standard of maintenance of Bayfront Park by the City, which standards are set forth in the Ground Leases and the City and Bayside are desirous of entering into this Agreement in order to more particularly define the standards of management, operation and maintenance to be complied with by the City in connection with its management and operation of the Marina. The City and Bayside agree that both parties are vitally interested in the successful integration of the Marina's management, maintenance, promotion and operation with that of the Bayside Specialty Center; 85 W-1029 - 2 - 144 NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the City and Bayside covenant and agree as follows: Section 1. Standard. The City agrees that it will manage, operate and maintain the Marina to a quality consistent with other first class marinas in the Miami- metro area and to a comparable level of quality commensurate with the quality and character of the management, operation and maintenance of the Bayside Specialty Center. Such management, operation and maintenance of the Marina by the City shall in all respects comply with the standards of operation of Miamarina (hereinafter referred to as the "Standards") annexed hereto as Exhibit A and incorporated herein. Section 2. Maintenance and Repair. The City shall maintain the structural integrity of the Marina including without limitation, the piers, docks, pilings, quays, sea wall and the original design depth of the Marina. In connection therewith the City shall, at its sole cost and expense, promptly retain a qualified marina engineer to survey the Marina and recommend such actions, both immediate and long term, remedial and preventative, which the City should take to assure or restore such integrity and depth. Implementation of any or all of the recom- mendations of such engineer shall be in the sole and absolute discretion of the City, provided, however, that the City agrees to comply with such recommenda- tions of the aforesaid engineer which are then required to be complied with or make such other changes or repairs which the City deems necessary in order to avoid the City's becoming in default of its standards of management, operation and maintenance as set forth in this Agreement or in the Ground Leases. -3- i Ss -1a29 Section 3. Insurance. The City shall carry such property and liability policies with respect to the Marina and the operation thereof as the City Manager may from time to time reasonably deem prudent and as shall be consistent with the letter agreements to be signed by the Risk Manaqers of Bayside and the City regarding the types and amounts of insurance policies concerning property damage and liability covering the Marina and the Bayside Specialty Center. Within thirty (30) days of the date hereof the Risk Manaaer for the City and Bayside shall enter into such letter agreements. If the Marina shall at any time during the term hereof be damaged or destroyed by fire or other insured casualty, the City shall, pursuant to the terms and conditions of the Ground Leases diligently repair and/or restore the Marina to the state same was in immediately prior to such casualty. The City will, from time to time and upon thirty (30) days written request, provide Bayside with copies of certificates evidencing the policies of insurance required to be carried by the City hereunder. Section 4. New Lighting. The City shall, at its own cost and expense, install and maintain along the Marina piers architectural lighting similar in quality and lighting levels and consistent in design to the outdoor promenade and pier park lighting to be installed at the Bayside Specialty Center. The City shall coordinate the installation of such lighting with the utility work being conducted by Bayside on the Bayside Property. Bayside shall have the right to review and reasonably approve the City's lighting plans and specifications prior to installation, which approval may not be withheld if such plans and specifications are substantially in accordance with the requirements of this section. 8S -1029 -4- 3 yAt �y y�? Section 5. Improvements. The City shall use reasonable efforts to obtain approvals for and install baffling devises in certain locations on the proposed port bridge in order to significantly reduce the effect on the Marina of "surge" from vessels passing the Marina on the adjacent waters of Biscayne Say. Bayside shall have the right to review and approve the design and location of such devices prior to installation, which approval shall not be unreasonably withheld. Bayside and the City shall enter into a letter agreement within 90 days of the date hereof which shall set forth an agreed upon schedule for the City's installation of the improvements set forth in section 4 and 5 hereof to assure that same shall be installed prior to the opening date of the Bayside Specialty Center. ,1 Section 6. Moored Vessels. The City shall enter into an agreement with Bayside to permit the ship Bounty to be moored at and to operate from the Biscayne Bay sea wall (such agreement may provide for the reimbursement to the City of costs and expenses incurred by the City as a result of the operation of the Bounty from said seawall). Such long term agreement shall be on terms and conditions reasonably satisfactory to the City Manager and Bayside. From time to time, upon request of Bayside, the City will enter into agreement with ti other visiting ships, ships associated with the pier park, the water taxi and paddle boat operations originated by Bayside with respect to the use by such ships of the Biscayne Bay seawall on terms and conditions reasonably satisfactory to Bayside and the City. The agreements between the City and Bayside referred to in this Paragraph 6 shall be subject to review and appropriate revision by the City Attorney's Office. Section 7. Default. The failure of either party hereto to perform any of the covenants, conditions and agreements of this Agreement which are to be 8�-1029 - 5 - performed by such party and the continuance of such failure for a period of sixty (60) days after notice thereof in writing from the non -defaulting party (which notice shall specify the respects in which the non -defaulting party contends that the defaulting party has failed to perform any of such covenants, conditions and agreements) unless such default be one which cannot be cured within sixty (60) days and the defaulting party within such sixty (60) day period shall have commenced and thereafter shall continue to diligently to prosecute all actions necessary to cure such default, such failure shall constitute an "Event of Default". If an Event of Default shall occur, the non -defaulting party shall have the right to pursue any of the following remedies: (i) the right to a writ of mandamus, injunction or other similar relief, available to it under Florida law against the defaulting party, including if the defaulting party is the City, any or all of the members of its governing body, and its officers, agents, or representatives provided, however, that in no event shall any member of such governing body or any of its officers, agents or representatives be personally liable for any of the City's obligations to Bayside hereunder; ` and (ii) the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from such default. For the purposes of any of the provisions of the Agreement, neither party shall be considered in default of any of its obligations hereunder if the compliance with such obligation is delayed or rendered impossible to perform as a result of an Unavoidable Delay (as defined in the Ground Leases). - 6 - 85 -1029 t jn 4 y J` a.� -Y Section 8. Applicable Law. This Agreement shall be governed by the laws of the state of Florida and shall be subject to and shall he interpreted to effectuate its compliance with the Charter of the City of Miami, the City of Miami Code and the Dade County Charter and Code and any conflicts between this Agreement and the aforementioned Codes and Charters shall be resolved in favor of the latter. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be illegal, invalid or unenforceable because of present cr future laws or any rule or regulation of any governmental body or entity or becomes unenforceable because of judicial construction of the remaining terms, covenants and conditions of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 9. Conflicts of Interest. No member, official representative or employee of the City or the City Manager shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, representative or employee 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 is, directly or indirectly, interested. No member, official, representative or employee of the City or the City Manager shall be personally liable to Bayside or any successor in interest in the event of default or breach by the City or the City Manager or for any amount which may become due to Bayside or its successor or on any obligations under the terms of this Agreement. -7- r.. 8"' -1029 x .r . & � 4 f � f IS A 0 Section 10. Duration of Obligations. This Agreement shall remain in full force and effect for so long as both of the Ground Leases shall remain in full force and effect. The obligations of the City to manage, operate and maintain the Marina pursuant to this Agreement shall commence on the date hereof, provided, however, that Bayside and the City agree that the Marina shall not be open for business with the general public during the period that the Bayside Specialty Center and the Parking Garage are under construction or restoration if such construction or restoration would be adversely affected by the Marina being open for business. Bayside may not assign its rights under this Agreement except in connection with an assignment of its interest under the Ground Lease which is permitted pursuant to the terms thereof. Section 11. Request for Proposals. If the City shall so elect, the City may, in compliance with its Charter, Code and applicable law, enter into a management agreement with a third party that is an experienced marina operator for the operation, management and maintenance of the Marina by such party (hereinafter referred to as a "New Operator"). If the City shall elect to cause a New Operator to operate the Marina, the City shall implement its normal request for proposal procedures and Bayside agrees that it will, in good faith, submit a proposal with respect to same in accordance with such procedures. Any management agreement to be entered into by the City with a New Operator must contain provisions pursuant to which the New Operator shall agree for the term of the new management agreement to perform, among other things, the obligations of the City under this Agreement. �4 Section 12. Purchase Price and Rental Credits. { `~ 12.1 (A) On or before the Possession Date, Bayside shall make an advance payment of rental under the Ground Leases in the amount of $1,675,000 8 8� -1029 and shall be entitled to an offset of rentals to become due under the Ground Leases in an amount equal to the Rental Credit (hereinafter defined). (6) Notwithstanding the provisions of the Retail Lease, Bayside shall not be obligated to pay more than $975,000 of the $2,650,000 due pursuant to Section 2.5(f) of the Retail Lease until the events in either (C) or M of the Section 12.1 occur and until the City has obtained the waiver referenced in (F) of this Section 12.1. The balance thereof shall bear interest at the Maximum Interest Rate. As used herein, the term "Maximum Interest Rate" shall mean a rate equal to 1% per annum plus the prime rate of interest from time to time charged by The Chase Manhattan Bank, N.A. Interest shall be calculated on the basis of a 360 day year. In no event may the Maximum Interest Rate exceed 25%. On the date hereof, the prime rate of interest charged by The Chase Manhattan Bank, N.A. is % per annum. (C) If the City enters into a Miamarina management agreement {1 with any person, f irm or corporation, the City shall repay or cause to be I repaid the Rental Credit to Bayside and Bayside shall simultaneously pay to the City the balance due the City under (B) above with interest thereon calculated at the Maximum Interest Rate, in which event Bayside shall not be entitled to offset the Rental Credit against the rentals due under the Ground Leases. (D) On the Rental Commencement Date, if the City has not entered into a management agreement for Miamarina with a third party or a subsidiary or affiliate of The Rouse Company, Bayside shall pay $1,675,000, which amount was deferred as provided in (B) above, with accrued interest computed at the Maximum Interest Rate. Upon the making of such payment, Bayside shall be entitled to receive the Rental Credit as hereinafter defined. - 9 - S -1028 ;FL F sou re As used herein, the term "Rental Credit" shall mean the aggregate of (i) $1,675,000 ("Original Amount") plus (ii) the accrued Opportunity Loss Factor earned thereon. The Opportunity Loss Factor shall be an amount equal to 1% above the prime rate from time to time charged by The Chase Manhattan Bank, N.A., calculated on the basis of 360 day year. The Opportunity Loss Factor shall never exceed 25% and shall be payable on the Original Amount or so much thereof as shall from time to time be outstanding from the date the Original Amount is advanced to the date of payment thereof. All rental payments otherwise payable to the City under the Ground Leases shall be applied first to accrued and unpaid Opportunity Loss Factor and then to the Original Amount until such time as the Rental Credit is paid in full. (E) The City may at any time without penalty or premium have the right to repay the Rental Credit together with the accrued and unpaid Opportunity Loss Factor thereon. (F) The City shall immediately apply to the State Board of i Administration of the State of Florida for an interest rate waiver pursuant to Section 215.84 of Florida Statutes Annotated. (G) If, at any time, the rate on the Opportunity Loss Factor exceeds the maximum interest rate permitted by law, the City on the next business day shall pay to Bayside the outstanding Rental Payment Allowance - i computed at the maximum lawful interest rate for any period the Opportunity I Loss Factor could otherwise exceed such lawful rate. 12.2 As a condition precedent to Bayside making the $1,675,000 payment under Section 12.1(A), the City shall deliver a legal opinion in form satisfactory to Bayside that the transactions contemplated in Section 12.1 do not violate any federal, state or local laws and that the City has the due - 10 - S"' -1029 j. � q 31,M1 .p• /c1 9 4� power and authority to perform its obligations under this Agreement and to make and receive the payments hereunder. Bayside may from time to time request the City obtain a supplement to the legal opinion that the oayments contemplated herein are not in violation of federal, state or federal laws, rules or regulations as of the date of the supplemental opinion. 12.3 The obligation of the City to pay Bayside or Bayside to pay the City set forth in this Miamarina Agreement shall be without notice or demand and without deduction or offset except as otherwise expressly provided in Section 12. All payments shall be in the form of certified or cashier's checks or other funds acceptable to the payee and shall be delivered to the payee at the notice address set forth in Section 13. In the event of a conflict between the Ground Leases and this Miamarina Agreement, this Miamarina Agreement shall control. Any late payment or accelerated amount due shall automatically accrue interest at the Maximum Interest Rate unless such rate is found to be unlawful or usurious, then at the maximum rate permitted by law. ,' Section 13. Notice.T Any notice or communication under this Agreement by either the City or the City Manager, on the one hand, to Bayside, or, on the other, by Bayside to the City or the City Manager shall be deemed sufficiently given or delivered if dispatched by registered or certified mail, postage prepaid, return receipt requested, addressed as follows: If to Bayside: General Counsel Bayside Center Limited Partnership c/o The Rouse Company 10275 Little Patuxent Parkway Columbia, Maryland 21044 55--1029 : rJ � r ai q a `Y ET If to the City: The City of Miami c/o the City Manager 3500 Pan American Drive Miami, Florida 33131 Either party may change the notice addresses above set forth by giving notice in writing of such change of address to the other party in accordance with the terms hereof. Section 14. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and such counterparts shall constitute one and the same instrument. •I_ Section 15. Successors and Assigns. _ All of the covenants, conditions and obligations contained in this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the City and Bayside. ` Section 16. Modification. Nothing contained in this Agreement shall alter, modify, supplement or amend the terms and provisions of the Ground Leases. Section 17. Dockmaster's Office. The City and Bayside shall prior to the Opening Date enter into a lease (the "Dockmaster Lease") pursuant to which Bayside shall make available to the City a maximum of 300 feet of office space at the improvements to be constructed by Bayside at the Marina for use as a dockmaster's office. The Dockmaster Lease shall provide that the City shall not be obligated to pay basic rent, common area maintenance or other rents or additional rents for such space but shall be responsible for utility and insurance payments. The Dockmaster Lease shall be in the standard form of lease entered into between Bayside and tenants at the Bayside Specialty Center and shall provide that the rental concessions therein contained shall be for 85 �-1029 - E4 s4 1 t_{ Y the sole benefit of the City and shall not be available to any other party that may commence to operate the Marina. Section 18. Termination. The obligations and liability of the City pursuant to this Agreement shall terminate upon the date of the termination of the last to ter;ninate of the Ground Leases or any substitute qround lease entered into pursuant to the terms hereof. Section 19. Conditions Precedent. Notwithstanding anything to the contrary in the Ground Leases, Bayside is not obligated to make the $2,650,000 payment and $1,000,000 payments referenced in Section 2.5 of the Retail Lease until (i) the Aareement and Release of Deed Restrictions and Reverter in a form acceptable to Bayside is executed between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and the City of Miami and delivered to Bayside's title company for recordation, (ii) the lawsuit which was filed by Pier 5 Boatmen's Association, Inc. and others against the City of Miami, The Rouse and Co., Rouse -Miami, Inc. and others shall be r dismissed with prejudice or otherwise disposed of to Bayside's satisfaction and an agreement shall be executed by all of the plaintiffs of such suit with the City in a form acceptable to Bayside and (iii) the leal opinions required j to be delivered hereunder, under the Ground Leases and under the Parking j Garage Management Agreement between Bayside and the Department of Off -Street I Parking dated January 4, 1985 af.delivered to Bayside as required by such I agreements. IN WITNESS WHEREOF, ROUSE-MIAMI, INC., the sole general partner of BAYSIDE CENTER LIMITED PARTNERSHIP, has caused this Agreement to be signed in its name by its Vice President and its corporate seal to be hereunto affixed and duly attested by its Assistant Secretary, and the CITY COMMISSION OF MIAMI 85 �-1029 - 13 - has caused this Agreement to be signed in its name by Sergio Pereira, the CITY MANAGER, and duly attested to by Matty Hirai, the CITY CLERK, on the day and year first hereinabove written. ATTEST: BAYSIDE CENTER LIMITED PARTNERSHIP, A MARYLAND LIMITED PARTNERSHIP BY: ROUSE-MIAMI, INC., A MARYLAND CORPORATION, GENERAL PARTNER BY: Vice rest en Assistant Secretary THE CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA BY: Matty Hiraip Sergio P5rdirav City Manager City Clerk APPROVED AS TO FORM AND CORRECTNESS: Lucia Allen Dougherty, City Attorney 990G/496A S"r r1V2►J EXHIBIT A STANDARDS OF OPERATION AND MAINTENANCE FOR MIAMARINA 1. No supplies or provisions for boats, including beer or fuel shall be sold at Marina except in quantities and a manner reasonably permitted by Bayside. 2. Boat repairs shall not be permitted at the Marina. 3. Janitorial maintenance and security of the Marina, including the interior waters, dockage along quay, docks, pilings, sea walls, lighting, charter fishing boat facilities and other facilities thereof shall be commensurate with the level of janitorial maintenance complied with by Bayside at the Bayside Specialty Center and shall include regular daily trash pick-up and removal process, removal of floating debris and 24-hour security. 4. No "for sale" or "for rent" signs shall be permitted to be displayed on the Marina premises or on any vessel using the Marina. All Marina signage, exterior or visible from the exterior, including, but not limited to signage to be installed by charter or commercial operators using the Marina, if any, shall be subject to the prior approval of Bayside, which shall not be unreasonably withheld. 5. No slips in the Marina shall be licensed for the purpose of the storage of vessels. 6. All dockage agreements for slips in the Marina shall be in form and substance and shall contain rules and regulations reasonably satisfactory to Bayside and the City. 7. All Marina slips adjacent to the Marina Promenade (except the area shown as crosshatched on Exhibit B which area is reserved for the dockage of charter fisherman) shall be rented at rates which discourage long term use. No commercial fisherman shall operate from slips adjacent to the Marina Promenade. 8. If the City shall elect to license slips to charter fisherman, the City shall install appropriate facilities (e.g. fish cleaning; table boxes; ticket facilities) for such fisherman. Bayside shall have a reasonable right of approval with respect to the design and location of such facilities. 9. Bayside will at all times afford the City reasonable means of ingress in, to and over the Bayside Property to enable the City to perform its repair and maintenance obligations hereunder. 10. With the exception of the occupancy rights which may be granted by the City to charter fisherman at the Marina, the City agrees that Bayside may from time to time cause the Marina to be closed to all S"r _1029 other occupants or licensees of slips at the Marina for periods not to exceed seventy-two consecutive hours. In no event may the number of days that the Marina is so closed exceed seven (7) days for a single calendar year. Bayside shall at least six (6) months prior to the Opening Date notify the City of the dates that Bayside requests that the Marina be closed pursuant to the terms hereof for the period from the Opening Date until the first day of the first Pental Year (as defined in the Ground Lease for the Bayside Specialty Center). Thereafter, Bayside shall give the City at least six (6) months written notice before the first day of each Rental Year of the dates that Bayside desires to cause the Marina to be closed during such Lease Year. Bayside shall be responsible for the payment of all janitorial maintenance and trash removal expenses with respect to the Marina during such periods and shall also clear the waters of the Marina of all debris after such periods. 11. The parties have agreed to negotiate in good faith a reasonable allocation of the costs and expenses of janitorial maintenance and trash removal services between the common areas of the Bayside Specialty Center and the Marina. If the City and Bayside are unable to reach an agreement with respect to same, the matter shall be submitted to arbitration pursuant to the provisions relating to same contained in the Ground Leases. Such negotiations shall commence within twelve (12) months of the Opening Date and, if the matter is not resolved within six (6) months of the Opening Date, it shall be submitted to arbitration, as aforesaid. 12. The City shall, during the term of this Agreement, on a regularly scheduled basis reasonably acceptable to Bayside, clear the Marina waters of debris in order that the appearance of the Marina be in keeping with the maintenance standards followed by Bayside in connection with the Bayside Specialty Center. 990GI496A-13 A - 2 8� -1029