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HomeMy WebLinkAboutR-80-0557r aydu RESOLUTION NO. 8 0- 557 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED AGREEMENT BETWEEN - BISCAYNE RECREATION DEVELOPMENT COMPANY AND THE CITY OF MIAMI FOR THE MANAGEMENT _ OF THE DINNER KEY MARINA COMPLEX INCORPORAT- ING AMENDMENTS AS SUBMITTED AND AGREED TO BY _ THE COMPANY SUBJECT TO THE TERMS CONTAINED IN THE ATTACHED AGREEMENT AND SCHEDULE. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The City Manager is hereby authorized to execute the attached agreement between Biscayne Recreation Development Company and the City of Miami for the manage- ment of the Dinner Key Marina Complex, subject to the terms and conditions set forth therein with amendments as agreed to by Biscayne Recreation Development in the attached Schedule. PASSED AND ADOPTED this 24 day of July , 1980. MAURICE A. FERRE M A Y O R ATTEST: d R ALP G. ONGIE ITY CLERK PREPARED AND APPROVED BY: - / � ROB RT F. CLARK, ASSISTANT CITY ATTORNEY APPRO EI) AS TO F RM AND RRECTNESS: GEORGURNEY KNOX, JR. CITY ITEh1 NO CITY COMMISSION MEETING OF JUL2 4 1980 onmon fN0.8.0. - ? 5 SCHEDULE OF AMENDMENTS TO THE AGREEMENT BETWEEN THE CITY OF MIAMI AND BISCAYNE RECREATION DEVELOPMENT CORPORATION: 4. CONSIDERATION C. Consideration After Permitting or Receipt of Bond Proceeds ADD TO LAST SENTENCE.: "In no event shall the company's share of remaining money from gross receipts exceed $100,000 annually." 4. CONSIDERATION G. Revenues from concessions (6) CHANGE TO: "(6) Sale of fuel, however, the company shall pay the City three percent of the price_ of each gallon pumped." Further, the Biscayne Recreation Development Corporation has agreed by the attached letter of understanding signed by Paul S. Walker that the applicable provisions of the National Park Service Concessioner Evaluation Program shall be used as the standards for the semi-annual inspection of the facility. F41 80-557 Biscayne Recreation Development Corporation 7817 N. 1-1. 72 Avenue Miami, Florida 33166 Mr. Joseph R. Grassie City Manager City of Miami Post Office Box 3307O3 Miami, Florida 33133 Dear Mr. Grassie: This letter is to state our concurrence in the u:e of the applicable provisions of the National Park Service Concossioner Evaluation fro(lram as a basis for judging our performance for managing for you the Dinner Key Marina as part of your semi-annual review. Sincerely, Paul Walker 80-557 MANAGEMENT AGREEMENT THIS AGREEMENT made and entered into this day of January, 1979, by and between the City of Miami, a Municipal Corporation of the State of Florida, hereinafter referred to as "The City" and Biscayne Recreation Development Companv, a Florida Corporation, hereinafter referred to as "The Companv", W I T N E S S E T H t WHEREAS, The City currently owns and operates the property and facility commonly known as the Dinner Key Marina; and WHEREAS, The City Commission desires to have private initiative and enterprise reconstruct and redevelop the Dinner Key Marina site into a first class operating marina; and WHEREAS, The City has advertised for Public Proposals. r for the lease and operation of' the Dinner Key Marina; and WHEREAS, The Company along with several other proposers made public proposals in accordance with the "bidding" 11 documents; and WHEREAS, The Company offered to renovate and design a new marina facility with private capital; and WHEREAS, The City now desires to finance the reconstruc- tion and development of the marina with monies from revenue bonds in order to keep the interest cost of repayment to a minimum in consideration of lower.dockage'rates for tenants and in order not to encumber said premises with a long term possession contract, and WHEREAS, The City has rejected all proposals for a long-term lease and operation of Dinner Key Marina; and WHEREAS, The City Commission directed the Manager to negotiate a short-term management contract with Biscayne Recreation Development Company; and "S U rvr i i ►r $p-R2 — o WHEREAS, The Company is both desirous and capable of construction management, and management i operation of the facilities at said marina; and WHEREAS, The City and The Company have negotiated this Agreement; NOW THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter contained to be observed and performed, the parties hereto agree as follows: 1. DESCRIPTION OF PREMISES The parties hereby agree that an accurate description of the managed premises, hereinafter referred to as "The Facility", "Property" or "Premises", is shown on exhibit "A" attached hereto and made a part hereof. 2. TERM a. Basic Term The Term of this Agreement shall be for a period of M ten (10) years including the time for permitting and construc- tion. This Agreement shall commence on the day of. 91 , 197 . b. Preferential Right to Renew The Company shall have a preferential right and option to renew this Agreement upon the same terms and conditions at the end of the initial term for a (5) year period provided as follows: The City shall rate The Company on its operation at least two (2) times per year at six (6) month intervals. The rating shall be based upon the condition of the docks and piles and the maintenance and cleanliness of the grounds and facilities. The Company steal-1 be entitled to its preferen- tial right and option to renew if its ratings have been generally satisfactory for the initial term of this Agreement. The Company shall give The City notice of its intent to exorcise this right at least sixty (60) days prior to the expiration of the Agreement. dISI 1`� . k_j4 1V t -2- DOCUMENTS FOLLOW"8o_s2 c. Cooperation with Consulting Engineers The Company shall cooperate with such consulting engineers, or other consultants, as may be designated by engineers under the Bond Ordinance, in making an annual inspection of the marina facilities and reporting their findings as to whether such facilities have been maintained in good repair, working order and condition, and their recommendations as to (i) changes, if any, in the operation, repair and maintenance of the facilities during the ensuing fiscal year and an estimate of the cost therefor, and (ii) the amount that should be deposited during the ensuing fiscal year to the credit of the Renewal and Replacement Fund, and (iii) any revisions of rates, rents, fees and charges. 3. USE The Company, as the management agent for The City, r shall be the exclusive agent of The City and shall operate the Facility during the term of this Agreement. For the consideration provided in paragraph four herein; The Company shall operate the property for a small boat port, marina and recreational facility, offering dockage and other marina related services, for the use of and by the general public. Services shall include but not be limited to the following: a. Dockage and mooring of boats. lJ..lb. Cn A boat ramp facility, which shall be open to the public and for which no charge shall be made. G L,J 0 c. Shower and restroom facilities for use by those t :- 7 r = J persons docking and mooring boats. 0- -� d. Closed circuit T.V. security system for the docks. e. Security system for moorings. v f. Sailboat, charter boat and commercial boat rentals-1/ g. Coin operated laundry facilities. h. Maintenance of landscaping, perimeter walkway and lighting. i. Sale of bait, tackle and ice. --------- - �. ---- Sale -of -marine hardware. --------------------------------------------------- 1/ The City retains for itself the right.to control sailboat conces- sions at the present location at Dinner Key or at such future location as provided within the redevelopment plan for Dinner Key Marina. -3- k. Sale of take-out food and beverages including beer. 1. Sale of fuel. m. Launch services for moored boats. n. Boat sales and boat brokerage, provided, however, E that a maximum of five percent (5%) of the total number of slips shall be used for such purposes. c. All other related services in accordance with City of Miami Zoning Ordinance and subject to the approval of the City Manager, which shall not be unreasonably withheld. The Company further agrees that during each year of the terms of this Agreement and any extensions thereof, Pier 5, or n y equivalent pier, shall be made available to such party as The City may designate as its contractor for purposes of con- ducting two annual Boat Shows. The fees charged by The Company to such designated contractor shall be an amount no greater than the total normal daily rental rate then in effect for each of the slips on said pier multiplied by the number of days of actual.use. 4. CONSIDERATION 91 A. Notwithstanding any other provisions of this Manage- ment Agreement, The City and The Company covenant and agree that the obligations, duties and responsibilities of each of the par- ties imposed under this Management Agreement shall be subject to the applicable provisions of the ordinance ("Bond Ordinance"), authorizing the issuance of the revenue bonds for the Marina Facilities. B. Basic Consideration As consideration for the efficient management, operation and maintenance of the property throughout the period of this Agreement, the parties covenant as follows: Upon execution of this Management Agreement, The City shall pay from the gross receipts, as herein defined, its monthly oper- ating expenses; next, The City shall pay The Company one cent (10) per foot, per day, for.dock space leased; next, F01,.I -' . so-62 - k. Sale of take-out food and beverages including beer. 1. Sale of fuel. m. Launch services for moored boats. n. Boat sales and boat brokerage, provided, however, that a maximum of five percent (5%) of the total number of slips shall be used for such purposes. o. All other related services in accordance with City of Miami Zoning Ordinance and subject to the approval of the City Manager, which shall not be unreasonably withheld. The Company further agrees that during each year of the terms of this Agreement and any extensions thereof, Pier 5, or nny equivalent pier, shall be made available to such party as The City may designate as its contractor for purposes of con- ducting two annual Boat Shows. The fees charged by The Company to such designated contractor shall be an amount no greater than the total normal daily rental rate then in effect for each of the slips on said pier multiplied by the number of days of actual .use . 4. CONSIDERATION r A. Notwithstanding any other provisions of this Manage- ment Agreement, The City and The Company covenant and agree that the obligations, duties and responsibilities of each of the par- ties imposed under this Management Agreement shall be subject to the applicable provisions of the ordinance ("Bond Ordinance"), authorizing the issuance of the revenue bonds for the Marina Facilities. B. Basic Consideration As consideration for the efficient management, operation and maintenance of the property throughout the period of this Agreement, the parties covenant as follows: Upon execution of this Management Agreement, The City shall pay from the gross receipts, as herein defined, its monthly oper- ating expenses; next, The City shall pay The Company one cent (10) per foot, per day, for;dock space leased; next, Kt '' 80-62 - any excess revenues shall be deposited in a construction reserve account which shall be used to reduce the amount of any bonds required for reconstruction and expansion of the marina facility. In the event, notwithstanding due and diligent effort [ by the parties, that the Project as contemplated cannot be permitted, or a sufficient amount of The City's revenue bonds cannot be sold within two years of the date of this Agreement at a reasonable interest cost, not exceeding the then prevailing revenue bond rate, then any remaining revenue, after expenses and management fees, shall go fifty (50%) percent to a construction reserve fund for major repairs and renovation and fifty (50%) percent to The City. The City shall not be obligated or liable to The Company for any such failure or inability to obtain construction permits or to UJ Cr) sell such revenue bonds. �-- - _"� C. Consideration After Permitting or Receipt of Bond � , s D Proceeds r) C2,1 4Upon receipt of all permits necessary for reconstruc- Q�- tion and expansion of the marina facility or upon receipt of bond proceeds issued for reconstruction and expansion, , whichever comes first, The City shall first pay from gross receipts the monthly operating expenses based upon monthly requisitions from The Company. The City shall deposit the balance of the money in the Revenue Fund to the credit of • the various funds and accounts established under the Bond Ordinance. Said funds and accounts shall provide to The City a sum equal to one hundred fifty (150%')percent of Lhe Bond Service requirement for the Marina Facility except for concession improvements. The City shall pay to The Company on a monthly basis from money in the surplus fund a fee of one cent (10) per foot, per day, for dock space leased and ten percent (10%) of gross revenues produced by moorings; and at such time as the finger pier dockage rate exceeds twelve cents (120) per foot, per day, The City shall pay to The Company an additional one -tenth of one cent (1/10th of 10) per foot, per day, for each one cent (10) that the finger pier dockage rate exceeds twelve cents (120) per foot, per day. All -5- 0 80-602 r remaining money from gross receipts shall within sixty (60) days of the end of each fiscal year be divided equally between The Company and The City. D. Definition of Completion Completion of the facility shall be defined as acceptance by the City through issuance of a certificate of occupancy. E. Handling of Revenues The Company agrees that all revenues and other income of the marina facilities, including collections of rates, rents, fees and charges and all other income derived or arising from or in connection with the operation, repair, maintenance and management of the Marina Facilities, excluding, however, income from concessions which The Company may operate as hereafter set forth in Subsection "g", will be collected and deposited daily, as far as practicable, in the name of The City, to the credit of the Revenue Fund established under the Bond Ordinance. F. Bond Service on Concession Improvements Y The Company shall also pay to The City its monthly bond service requirement on any concession improvements for which bond funds may be required or used. In addition, The Company shall pay to The City one half (1/2) of the monthly bond ' service requirement for said concession improvements, plus an additional sum on an annual basis equal to 1/33th (one thirty- fifth) of the cost of construction of such space provided for said concession improvements for depreciation, replacement and repair. Payment of the aforesaid sums shall begin after the completion of said construction. Finally, The Company shall pay to The City one cent ($.01) per gallon of fuel sold at the marina. G. Revenues from Concessions The Company shall be entitled to operate any concessions or to enter into percentage agreements with concessionaires to provide the services set forth hereafter. The Company will pay the City the following considerations arising out of the operation 'AS Lj .. _ -6- 1 �f "' 1• lo 0 80-60 - of the conces-Sons l...ted below, namely: C..en pa.cent (10%) of The Company's gross revenues earned from concessions contracted to third party concessionaires; or ten percent (10%) of The Company's net profit, but not less than five percent (5%) of The Company's gross revenues earned from all concessions operated by The Company at Dinner Key Marina. The services referred to herein are: (1) Security systems for moorings (2) Coin -operated laundry facilities (3) Sail of bait, tackle and ice (4) Sale of marine hardware (5) Sale for consumption, off the premises, of food and beverages, including beer, but not other alcoholic beverages (6) Sale of fuel; however, The Company shall pay The City one cent for each gallon of fuel pumped U_j (7) Boat maintenance and repair (8) Boat brokerage services providing that any boat C_ for sale shall pay the full price for moorings and for wet slip storage. Brokerage slips shall CL be limited to five percent (5%) of the total new (n lineal footage available for lease after construc- tion exceeds the lineal footage currently available (9) Other services subject to the City Manager's approval • In the event The Company chooses not to provide any of the above services, The City may negotiate a direct concession for these services. • H. Definitions Operating expenses shall be defined as salaries paid to the dockmaster, assistant dockmaster, dock workers, bookkeeper, receptionist, secretaries, typists and other employees providing direct services to tenants; social security and other employee benefits; legal expenses; auditing; office expenses; miscellaneous supplies and equipment; utilities and waste removal; insurance; ordinary maintenance and -7- 80-62 A repair; and advertising and promotion. (Further, annual operating expenses shall include a depreciation reserve and replacement amount equal to one -thirty-fifth (1/35th) of the total amount of the bond issue used, excluding concession space. Such funds shall be deposited, on a monthly basis, with The City and shall be available for extraordinary repairs and replacement expenses that will extend the life of the facility. Ordinary repairs necessary for proper maintenance and operation of the facility shall be the responsibility of The Company through its annual operating budget.) The term "gross sales" as used herein shall be considered synonymous and interchangeable with the term "gross receipts" and shall include all income collected by The Company from the operation and management of the facility. Bond service requirement as used in this Agreement shall mean the amount in any fiscal year which would be necessary for The City to pay the sum of the amount to be deposited i*n the interest account and the amount to be deposited in the principal account on its revenue bonds if all bonds were amoritzed in equal installments over a period of not less than twenty-five (25) years. Monthly bond service requirement is one -twelfth (1/12t)i of the bond service requirement. S. MANAGEMENT SERVICES a. The Company shall deliver on or before the fifteenth (15th) day of each month, beginning with the second month of this Agreement and continuing each and every month thereafter during the effective period hereof, at the office of the Department of Finance of The City, or at such other place as may be designated hereafter by The City the aforementioned monthly payments. Along with said payment, The Company shall provide an operating statement in certificate form signed by a duly authorized officer of The Company setting forth in such detail as the Director of Finance of The City may prescribe, the amounts of gross sales. b. Charges and Handling of Money The Company shall offer, make and keep the Marina Facilities available for use by the general public and shall charge and collect the rates, rents, fees and charges for the services rendered by or for the use of such facilities in conformity with the schedule thereof as prescribed or authorized by The City. The Company shall supervise and control the hand- ling of all money received in the operation of the Marina Facilities and shall establish an adequate system of internal controls, satisfactory to the City Manager, covering the receipt and expenditure of money and the maintenance and operation of marina facilities and shall prepare all appropriate operating and financial reports and statements necessary or appropriate under this Management Agreement. f C. Certain Rights, Duties and Responsibilities of The Company The Company and The City agree that The Company shall operate, maintain, repair and manage the marina facilities for The City as an independent contractor in accordance with this Management Agreement and subject to such rules and regulations and schedules of rates, rents, fees and charges, including any revisions thereof, from time to time in effect, as prescribed or authorized by The City. The Company shall operate, maintain, repair and manage the marina facilities, and shall maintain such facilities in a neat and orderly fashion consistent with such high standards and shall render first class, high quality, courteous service to the general public. The Company is empowered to manage the marina facilities and is hereby authorized to exercise such management power as it deems reasonably necessary for t! -9- 80-62 orderly, safe, sanitary and secure use of such facilities in accordance with applicable laws, regulations, ordinances and rules of the City. d. Current Expenses The current expenses incurred in the operation, repair, maintenance and management of the marina facilities shall be paid out of the Revenue Fund in conformity with the budget in effect at the time and the Bond Ordinance. ` e. Renewal and Replacement Fund Expenditures Expenditures of money in the Renewal and Replace- ment Fund shall be made by The Company in conformity with Lhe Bond Ordinance and the budget. Current expenses and expenditures of money in the Renewal and Replacement Fund shall not exceed the reasonable and necessary amount therefor; provided that in the event of any emergency The Company may make urgent expenditures not within the purview of the budget with the approval of the City Manager or his designee. f. Company as Manager • This Management Agreement establishes The Company as the manager and operator of the subject facility, and any person dealing with The Company shall have the -right to rely fully on its power and authority to bind the facility with regard to the use and occupancy thereof, excepting however, The Company shall not have the authority to encumber real or personal property except as provided in this Agreement. The parties hereto intend that The Company shall be an independent contractor, and the employees and agents of The Company shall attain no rights or benefits under the Civil Service or Pension Ordinances of The City, nor the rights generally afforded class- ified or unclassified employees of The City, nor shall The Company or its employees be entitled to Florida Workmen's Compensation benefits as employees of The City. •J 1' 7 -10- 80-62 r The Company shall have the sole control of the manner and means of performing this Agreement subject to The Company comply- ing with the terms of this Agreement. The Company shall have the full power and authority to take all actions to bring about an efficient operation of the marina and to maintain it as a first class marina, except for actions specifically prohibited in this Agreement. The Company shall have the exclusive authority to hire and discharge all of its employees necessary for the operation of a marina facility and to fix their compensation and privileges. g. Professional and Technical Services The Company may employ technicians and consultants to provide such legal, accounting and other professional or techni- cal services as The Company deems advisable for the proper main- tenance and operation of the Marina Facilities, subject to the budget for the then current fiscal year. h. Additional Responsibilities For consideration provided in Paragraph 4, The Company shall, as a minimum: (1) Provide The City with an estimate of required operat- ing expenses for the forthcoming fiscal year subject to approval by the City Manager, which approval shall not be unreasonably withheld. (2) Maintain books and records in sufficient detail to meet LU acceptable accounting practices. Said books and re- cords shall be accessible to The City at reasonable times. (3) Be responsible for hiring and discharging all employees ZD L:_ related to the operation and normal maintenance of the facility. (4) Provide normal and routine maintenance of the facility in order to insure that the property remains in a good state of repair, free from hazardous conditions and deterioration. (5) Be responsible for the administration of all Leases of the marina facilities, including, but not limited to the collection of all sums due from Tenants and the -11- 80-62 general public for the rental and use of facili- ties, including, but not limited to slip rentals, mooring fees, dockage fees and fees of any nature for use by said public of the subject premises. The Company is authorized and empowered and is granted the responsibility to pursue all appropri- ate legal action as is necessary to collect unpaid •obligations and enforce all Landlord's'rights, in- cluding the pursuance of all legal remedies avail- able for such purposes subject to the provisions of the City Charter. The City agrees that the responsibility of The Company herein provided shall be pursued in the name and on behalf of The City. (6) The Company shall furnish an adequate fidelity bond .in the amount of not less than Fifty Thousand Dol- lars ($50,000) requiring The Company to quarterly r account for revenues it receives on behalf of The City in accordance with the provisions.of this Agree- ment. (7) The Company shall be responsible for the complete' operation of the Dinner Key Marina Complex as de- fined and legally described herein. (8) The Company will institute management systems, secur- ity systems, training and staffing programs , promo- tional and advertising programs and financial con- trol systems that will provide a secure financial operation and achieve tiie objectives of The City for the Dinner Key Marina. (9) The Company will act as manager for the redevelopment and reconstruction of the Dinner Key Marina facility "' at the present location so that the marina will be a public waterfront recreation facility at the present site. This reconstruction will be financed by The City through Revenue Bonds. The construction and renovation will comply with all governmental rules and regulations. -12- 80-62 (10) During the term hereof, The Company will maintain and operate the premises and all improvements thereon, in good condition and repair consistent with the operation of a first class marina. - (11) The Company shall be responsible for all claims, suits, actions and damages that may arise as a re- sult of the negligence of The Company's operation of this facility. (12) Company will not allow any signs or advertising material to be placed on the exterior of any structure in the facility. (13) Except for dockage and mooring, The Company will not subcontract any portion of the marina operation without the prior consent of the City Manager which shall not be unreasonably withheld. (14) The Company will abide by and enforce all rules. and regulations now in effect or established by The City from time to time. Any rule or regulation es- tablished by The Company shall require approval of the City Manager which shall not be unreasonably with- held. (15) The Company will make every effort to enforce the re- Sr'•'` 1VE moval of all vessels from the facility upon issuance DOU 'J: ` • yj �JTS of Hurricane Warnings by the National Hurricane FOLLC ° Center. (16) The Company shall enforce the rules and regulations in the Dockage Agreement as follows: (a) Only vessels in good condition with their own power will be permitted in the berthing area. (b) Berths will be assigned by the dockmaster or his representative and no changes will be made with- out permission. (c) The Company will be responsible for keeping the piers clear of all vehicles, small boats, supplies and storage of any items except those that can be -13- • / stored in the locker that may be suppliu%A with the berth. (d) The Company will limit the number of vessels that can use each berth to one, except that one small boat may also be berthed, provided it is within the limits of the berth, and does not pro- ject beyond the pilings. (e) The Company will limit the repair work that may be done at the docks as defined in the City of Miami Agreement. (f) The Company will enforce the rules that pro- hibit the use of charcoal burners, open flame torches and any other open flame producing equipment. (g) The Company shall enforce the present rules on the use of T.V. sets, musical instruments, hailers, radios and other on board equipment that may create a nuisance. (h) The Company shall enforce the rule prohibiting the throwing overboard of any objects, such as gar- bage, trash, human waste, and shall enforce the pro- visions prohibiting swimming, diving or fishing from the piers. (17) The Company contemplates the installation of radio equipment within the Dockmasters Quarters to provide boaters with ship -to -shore communication. In addi- tion, The Company will install closed circuit T.V. scanning to provide better security at the docks and their environs. (18) The Company will initiate a newsletter, either monthly or biweekly, to keep the Dinner Key boaters abreast. of activities, events, and general information con- cerning the area. (19) The Company will encourage programs emanating from Dinner Key such as regattas, tours, and entertainment. -14- 6i'%` E ' _ _ 1 �l- 4fS 80-R,c> (20) The Company will endeavor to establish a relation- ship with other marinas in the area with the in- tent of providing better service for all of the boating public. (21) The Company will endeavor to promote exchange of boat uses between the tenants of Dinner Key Marina and marina tenants in other parts of the country and the world. (22) The City or The Company may, from time to time, request changes in the scope of services to be per- formed hereunder. Such changes which are mutually agreed upon between The City and The Company must be incorporated in written amendments to this Agreement following approval thereof by the City Commission. r (Additional services to be provided by The Company are in- cluded in other portions of this Agreement.) IC�' 1 ram. _ Ju " ��'��IV_E DC)kil., ,1: �tV� S i -15- i 6. CONSTRUCTION OF NEW FACILITIES The parties hereto agree that The City and The Company shall use their best efforts to expand Dinner Key Marina to pro- vide for approximately 550 slips, 200 moorings and support facilities for the marina, including, but not limited to dock - master's offices, laundry services and restrooms, storage space for maintenance equipment, mail areas, bait & tackle, carry -out food facilities, sail boat rental areas, transient facilities and commercial boat facilities and such other facilities as The City deems appropriate. The parties agree to provide the maximum number of slips consistent with the maintenance of a sound environment and sub- ject to approval of all regulatory agencies. It is anticipated that The City shall issue revenue bonds of approximately $4,500,000 to provide financing for the marina improvement and expansion. The parties hereto mutually agree that The Company shall select and pay from its own resources the design and engineering team to perform the permitting and preliminary engineering. Said team shall be selected subject to the approval of The City Manager, which approval shall not be unreasonably withheld. The Company agrees to pay a maximum of $100,000 for pre- liminary engineering and permitting of•the'marina. Preliminary engineering shall not include working drawings and permitting shall not include the cost of City of Miami permits. Attor- ney's fees, engineering and consultants fees and all other costs and expenses shall be included in the permitting process. Y -16- 80-62 ' The Florida Consultant's Competitive Negotiations Act (F.S. Sec. 287.055) shall apply to the engagement of all con- sultants who are the subject of said Statute who are compen- sated by City funds (as distinguished from those engaged and E compensated by Company). The Company shall participate in E the competititve selection process by having a designated representative appointed to the selection committee. During the preparation of engineering plans and specifi- cations, The Company will determine the appropriate layout, support systems, ancillary uses and design and construction criteria, subject to approval by The City Manager. The City shall issue all construction contracts for the facility. The :.ompany shall provide on -site oversight and management of the project and shall notify The City of any problems that arise during construction that will affect the operation, management and maintenance of the marina. The parties agree that the completed design plans and 11 specifications shall become the property of The City. 7. CUSTODIAL SERVICE The Company shall furnish all maintenance supplies for housekeeping and shall provide all custodial and janitorial '- services required to maintain the property in a clean, sanitary and presentable condition. S. CITY'S RIGHT TO EXAMINE PROPERTY The Company shall make available for inspection by City rn Manager or his designee all areas of the property under its control, at any time for any purpose the City Manager deems necessary or incidental to or connected with the performance of The City's duties and obligations hereunder. 9. DOCKAGE RATES The Company shall recommend dockage rates and rates for the use of other facilities and services to the City Manager. The following costs, expenses and economic factors shall be considered and included in setting dockage rates, namely: Bond debt service requirements of one hundred fifty percent (150%) coverage -17- 80-62 r charges, operating expenses, management fees and other costs, all as set forth in paragraph 4 of this Agreement. Dockage rates shall be generally consistent with those charged at other marinas of comparable quality situated on public lands in the Dade County area. In addition to the dockage rate, The Company shall be permitted to require vessel owners to pay for utility service which is separately metered. Rules and Regulations: The Company shall recommend to the City Manager any rules and regulations it deems advisable for the operation, use, repair, maintenance and management of the marina facilities. The City and The Company agrees that such rules and regulations shall be prescribed and enforced to provide marina services to the general public of the highest quality, with due observance of amenities and astute standards commensurate with the appear- ance and maintenance standards of the surrounding area. The Company covenants that it will observe and enforce said rules and regulations. 10. CONFORMITY TO THE LAW The Company covenants to comply with all laws, ordinances, regulations and order of Federal, State, County and Municipal authorities pertaining to the property and operation thereon. The Company further covenants and agrees that there will be no discrimination as to race, color, creed, sex or national origin in the use of the property or in the employment of its personnel. Protection of Tax Exemption: The City and The Company covenant and agree that, notwith- standing any other provisions hereof, the marina facilities shall be operated and maintained hereunder at all times as public facilities owned by The City and serving the general public and shall be available on a regular basis for general public use, and that inthe operation and maintenance of the �f . -18- 80-62 marina facilities nothing shall be done by either The City or Company to jeopardize the exemption from Federal income tax of the interest on the bonds (exclusive of bonds held by a sub- stantial user of the marina facilities or a related Verson, as defined in the Federal income tax regulation). Any provi- sion in this Management Agreement which jeopardizes such tax exemption shall be deemed null and void. 11. PAYMENT OF UTILITIES The Company shall pay for all utilities consumed on the premises and waste collection fees, if any, as an operating expense except as provided in paragraph 9 hereof. 12. WATER TAXI AND TRAM STATIONS In the event The City decides to provide or grant a franchise to provide a Tram or People -Mover system for the Dinner Key Park area, the parties agree to establish a station and roadway for access for said system on the property, so long as the same does not unreasonably interfere with the operation,, of The Company under this Agreement. Any costs in adjusting the site use to accommodate said system shall be borne by The CiLy or its franchisee, as the case may be. In the event The City decides to provide or grant a franchise for Water -Born Transportation to and from the Dinner Key area to other locations in The City, the parties agree that such free embarking and disembarking facilities for said Water - Born Transportation will be provided. Any costs in adjusting the site use to accommodate said system shall be borne by The City or its franchisee, as the case may be: Location of said facilities as described above shall be mutually agreed upon. 13. HURRICANE AND EMERGENCY The City shall, during any emergency such as hurri- cane, flood, fire or any type of disaster, cooperate with The Company for the security of the premises. The City shall use its best efforts during an emergency to safeguard the said premises. r "r'N M-rl� Ir r -19- 1. 80-62 14. INVENTORY All fixtures, furnishings, furniture, and equipment, if any, in or upon the facility and their condition will be in- ventoried before occupancy by The Company. The Company will maintain fixtures, furnishings, furniture and equipment, if any, in good and operable condition during the term of this Agreement at its own cost and expense, except for those fix- tures, etc. attached to docks and building to be demolished, and said property shall be deemed in its sole custody and care. In the event that any of the aforementioned items are lost, stolen or damaged, they shall be replaced or repaired at the cost and expense of The Company, ordinary wear and tear excepted, during the term of this Agreement. 15. OWNERSHIP OF IMPROVE►•'IENTS All improvements, fixtures and equipment constructed or installed at the facility or purchased with City funds shall be owned by The City. The Company shall have title to all pert sonal property purchased with Company funds which were not in- cluded in the annual operating budget. Upon expiration or termination of this Agreement, title to the property, all perm- anent improvements, fixtures and equipment purchased with The City funds shall be peacefully surrendered and delivered to The City. Title to all Company equipment shall remain vested with The Company and The Company shall have the right to remove the • same from the premises. 16. DAMAGE OR LOSS TO COMPANY'S PROPERTY The Company assumes all risk.of damage or loss to its property for any cause whatsoever, which shall include, but not be limited to, any damage or loss that may occur to mer- chandise, goods, equipment or other property covered under this Agreement, if lost, damaged or destroyed by fire, theft, rain, water, or leaking of any pipes or waste water in or about the property or from hurricane or from any act of God, or any act of negligence of any user of the facilities or any persons whomsoever. iVL t_.NTS -zo- �� gp-s 17. DESTRUCTION In the event the premises shall be destroyed or so damaged or injured by fire, hurricane or any other casualty during the life of this Agreement whereby the property shall be rendered incapable of use for its intended purpose, the parties agree to use the insurance proceeds to rebuild the facility. Interest on insurance proceeds shall be used to pay the bond service require- ment to the maximum extent possible. 18. INDEMNIrICATION The Company covenants and agrees that it shall indemnify and save harmless The City from and against any and all claims, s+i?ts, actions, damages or other causes of action arising dur- ing the term of this Agreement for any personal injury, loss of life or damage to property sustained in or about the property, by reason of, or as a result of The Company's management thereof, and from and against any orders, judgments or decrees, which may be entered thereon, and from and against all costs, attorney's fees, expenses and liabilities incurred in and about the defense of any such claim and the investigation thereof; provided, how- ever, that before The Company shall become liable for said cost, The Company shall be given notice in writing that the same are about to be incurred and shall have the option itself to make the necessary investigations and employ counsel of The Company's own selection for the necessary defense of any claim. The City may, at its option, retain its own counsel at its sole cost and expense in addition to the provisions as hereinabove set forth. 19. ADVERTISING The Company agrees to undertake an aggressive advertising program to inform the public of the availability and services of the marina, and The City agrees to use its best efforts, through its Publicity Department and other Departments, to assist The Company in promoting the public use and enhancement of the marina. Further, The Company shall undertake, with the City Parks and Recreation Department, to erect appropriate signs de- signed to assist and direct the public to the marina and its services. zlSUPr.^nT!! /rr -21- LL�1�' 8Q-6 ■ r, The Company agrees to work with area merchants and busi- nesses to develop an integrated program of auxiliary services, such as hotel accommodations, car rentals, restaurant and laundry services, for marina users. 20. DEFAULT If The Company shall neglect or fail to perform or ob- serve any of the terms, provisions, conditions and covenants herein contained, for a period of thirty (30) days after re- ceipt by The Company of notice of such neglect or failure, or if more than thirty (30) days shall be required because of the nature of such default, if The Company shall fail within thirty (30) days period to commence and thereafter proceed diligently to cure such default, or if The Company shall be declared bank- rupt according to law, then and in any of the aforementioned events, The City may lawfully and immediately or at any time thereafter, without demand and/or notice, enter into and upon the facility or any part thereof and expel The Company and term- inate this Agreement. 21. NOTICES Notices from The City to The Company shall be deemed ,duly served if mailed by registered or certified mail, postage pre- paid to The Company at 444 Brickell Avenue, Suite 1000, Miami, Florida 33131, attention: Murray H. Dubbin, General Counsel, and Notices from The Company to The City shall be deemed duly served if mailed by registered or certified mail, postage pre- paid to the City Manager, City of Miami, P. O. Box 330708, Miami, Florida 33133; or to such ether respective persons or addresses as the parties may hereinafter designate to each other, by notice given in the foregoing manner, from time to time. 22. TIME IS OF THE ESSENCE Time for the occurrence or performance of each and every event herein shall be of the essence unless otherwise indicated. 23. TAXES The parties agree that the management and operation of the Dinner Rey Marina facility and those operations convenient or necessary therefor, are public purposes and, therefore, no l 'A I I V -22- '. '''j NTS 80-62 0 ad valorem taxes should be assessed by the Dade County Tax Appraiser. If, however, taxes are assessed by said property appraiser, the parties agree: A. Assessment upon or against concession properties. In - the event that the property tax appraiser assesses taxes upon or against such portion or portions of the lands subject to this Management Agreement as are in the control of concession- aires, or upon which concessionaires are situated; in the per- formance of any concession agreement hereunder, the parties agree that at the request of and at the expense of any such con- cessionaires, the parties may defend against such assessment on behalf of such concessionaires. The extent of such defense by the parties shall be as reasonably requested by such concession- aires, provided further, however, that at all times the parties have first determined that the said concessionaires requesting such defense or requesting the joinder in such defense, will fully and completely pay the costs and expenses of such defense CD;'_ ;as may be incurred by the parties or either of them including L'"-court costs and reasonable attorneys' fees incurred by the par- U_ �j L _ ties or either of them in such defense, and provided, further, that the said concessionaires requesting such a contest of assess- ment fully and completely indemnify and save the parties jointly and separately harmless from any and all claims, charges or in- debtedness resulting from the conduct of such defense and con- test in the event the same is not successful. All concession agreements entered into between The Company and its concession- aires shall through appropriate language incorporate the terms and conditions of this covenant. B. Assessments against the marina property. In the event taxes are assessed against the property upon which docks, piers, moorings and any other properties devoted to marina use and upon which the marina is located as well as properties upon which the marina administrative facilities are located, as well as all improvements thereto, are assessed by the property tax appraiser, the parties hereby agree as follows: 1. Both parties agree to cooperate fully with each -23- 80-62 other to contest and defend against said assessment. Said con- test and defense shall, at the option of the parties or either of them, be conducted at the administrative level, i.e. before the tax appraiser, the tax appraisal adjustment board or any successor organization, and before the courts, to such extent and to such level as The Company or The City shall determine. 2. The costs and expenses including reasonable at- torneys' fees which are incurred by the parties as well as such taxes which have accrued and been paid during the course of the litigation contesting said taxes, shall be included in the oper- ating budget as operating expenses and become a part of those economic elements going to the makeup of the dockage rates, as more fully referred to in paragraph 9 of this Agreement. 3. If final adjudicatory action, i.e. the final order of the highest tribunal before which the property assess- ment issue has been submitted for determination, administrative or judicial, results in a determination that such assessment is lawful and that the taxes are due and such determination is based upon reasons other than the existence of this Management Agreement, then it is agreed that all real property taxes, county, school board and municipal shall be included in and made a part of the operating budget as operating expenses which shall be included and made a part of the total expenses used to determine dockage rates as set forth in paragraph 9. 4. In the event the final adjudicatory action de- clares the assessment lawful and the taxes to be due and payable, solely due to the existence of this Management Agreement, then it is agreed that the amount of said taxes shall be made a part of the operating budget and shall be deemed operating expenses included in the makeup of the dockage rates as set forth in par- agraph 9, unless the effect of such inclusion causes dockage rates to exceed the average rates charged for dockage and moor- ings at other marinas situated on public land located in the Coconut Grove area. In such latter event, The Company may pay any amount of tax which causes such excess of the average rate from its profits. If The Company fails to pay such excess, then i4c%, U OORTIVE IDr)' -24- �'''" NTS so-6 Fui LOili//" r The City shall terminate this Management Agreement and reim- burse The Company for expenses incurred in accordance with Paragraph 6 - CONSTRUCTION OF NEW FACILITIES. S. The economic effect of such property taxes shall be computed annually and made a part of each semi-annual oper- ating budget with such adjustments as may be required to con- form to the terms of This Agreement. 24. LAWSUITS - RENT STRIKES If and in the event a lawsuit is brought by any party against The Company and/or The City, which in substance arises solely due to the signing of this Agreement, then the parties agree to mutually defend said lawsuit. If said lawsuit results in a temporary delay of the projects, this Agreement shall be extended by the amount of time caused by the delay. If and in the event that there is a tenant strike or a similar strike or refusal to pay rent or lawsuit of any type or nature in which rental payments are placed in any escrow account or in any court fund, The Company shall be relieved of its obli- gation to pay to The City any amount in excess of the monthly bond service requirement until such rent strike or suit is settled and all sums are released to and/or obtained by The Com- pany. This provision shall not permit a reduction in the amount of consideration required to be paid, but only a temporary de- lay of the required payment. 25. INSURANCE The Company shall not commence work on this Management Agreement until it has obtained all insurance required under this section and such insurance has been approved by The City. The Company shall at all times, during the term of this Agreement, maintain in full force and effect the following de- scribed insurance covering the property and the operation thereon: (a) Public liability insurance of not less than $1,000,000 per occurrence for death or bodily injury and not less than $1.000.000 per occurrence for property damage. (b) Fire and casualty coverage of not less than ninety (90%) of replacement value of all e-xitsting and future improve- ments. 71c;I )n"1j- _ . 80-6� • Said insurance shall name The City as an additional in- sured and shall provide that The City shall be given at least thirty (30) days advance written notice of cancellation of said policy or any material modifications thereof. Certificates of insurance shall be filed with the prop- erty and insurance manager of the City of Miami. The insurance provided for herein shall be written by a company authorized to do business in the State of Florida through an agent authorized to do business in the State of Florida and must be rated at least A as to Management and Class 10 as to Financial according to A.M. Best Key Rating Guide, latest edition. The Company shall further carry any other insurance rea- sonably required in connection with the proposed operation. 26. FUNDING The City shall be solely responsible for funding the im- provements described herein. The City agrees to provide funds' from revenue bonds in a sufficient amount not to exceed Five Million Dollars ($5,000,000). 27. CONFLICT OF INTEREST , No stockholders, directors or employees of The Company shall have any interest in any business which supplies The Com- pany with goods or services without advice to and consent of the City Manager. It is understood and agreed that The Company's • attorneys, Dubbin, Schiff, Berkman & Dubbin, are also stockhold- ers of The Company and that they may, in addition to receiving any profits or dividends declared, be compensated at their reg- ular rates as an operating expense in connection with any of The Company's needs or rights and obligations arising out of or in connection with the provisions of this Agreement. 28. ATTORNEYS' FEES AND COSTS In the event that it is deemed necessary for either party to file a lawsuit in the appropriate court of law in order to enforce any of the terms and provisions of this Agreement, then the prevailing party shall be entitled to reasonable attorneys' fees and costs. "SUPPORTIVE -NITS -26- - ,,,, g p - 6 2 t.: 29. CAPTIONS The captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Agreement or the intent of any provision hereof. 30. REVISIONS DUE TO BOND ORDINANCE The parties agree that this Agreement shall be revised to the extent necessary, in the opinion of underwriters for The City, of its revenue bonds, to reflect provisions in the Bond Ordinance as may be necessary or desirable to make the revenue bonds marketable. In no event shall the provisions respecting the amount of the management fee payable to The Company be changed. 31. ENTIRE AGREEMENT This Agreement contains the entire understanding of the parties hereto concerning the subject matter hereof and no modification, release, discharge or waiver of any of the pro- visions hereof shall be of any force and effect unless in writing and signed by both parties. 32. REPRESENTATION BY CITY City warrants and represents that it has full power and authority to enter into this Agreement under the Constitution and laws of the State of Florida and Ordinances and Resolu- tions of Dade County and City of Miami, and that all condi- tions and things required by the Constitution and laws of the State of Florida, Dade County and the City of Miami to happen, exist and be performed precedent to the signing of this Management Agreement have happened, exist and have been performed as so required. "SUPPORTIVE DOCUi i; _i�S FOLLOW" -27- ------------- • 33. NOTI-ASSIGNABILITY CLAUSE This Management Agreement may not be assigned by The Company without prior approval of the City Manager. Any assignment, transfer or conveyance of stock to parties who are not stockholders as of the date of this Agreement shall be deemed an assignment requiring the City Manager's prior approval. An assignment subject to the restriction contained herein shall not include an assignment to the personal representative of a deceased stock- holder or to said stockholder's estate or heir. Provided, however, that a subsequent transfer, assignment or conveyance from the stockholder's estate or heir to a third party who is not a stock- holder as of the date of this Agreement shall require such approval. Also excluded from the operation of the restrictions of this clause shall be assignments, transfers or conveyances between and amongst persons who are stockholders as of the date of this Agreement or members of their immediate family. IN WITNESS WHEREOF, the parties have hereunto caused these presents to be executed this ATTEST: Ralph Ongie, City C er Robert M. Traugott, Secretary day of , 19 . THE CITY or MImi • Joseph Grassie, City Manager BISCAYNE RECREATION DEVELOPMENT COMPF NY Pau S.-Walker, President APPROVED AS TO FORM AND CORRECTNESS: GEORGE F. KNOX, JR. CITY AT NEY, ZY OF_4IIAPSI 1qo- By: -28- 80-6.iI j rcv�ed K71 ILI • • CITY OF MIAMI EVALUATION OF THE DINNER KEY MARINA MANAGEMENT AGREEMENT MAY 1980 IIJKLMat.,'Nlan%-ick,,Nlitchell&C(x a CITY OF MIAMI EVALUATION OF THE DINNER KEY MARINA MAY 1980 • C RPeat.,Marwick,MitcheII&Ca The Honorable Maurice Ferre Mayor of Miami City of Miami 3500 Pan American Drive Miami, Florida Dear Mayor Ferre: Certifled Public Accountants 1000 Brickell Avenue Miami, Florida 33131 May 30, 1980 We have completed our evaluation of the proposed Management Agree- • ment for the Dinner Key Marina between Biscayne Recreation Development Company (BRD) and the City of Miami. The purpose of the evaluation was to determine if the City of Miami would receive a fair rate of • return under the terms and conditions of the Management Agreement. Based on our analysis, we have concluded that the City of Miami would not receive a fair rate of return under the present terms and condi- tions of the Management Agreement due to the following considerations: the low return to the City in light of the City's investment and risk; the high fee paid to the management company in relation • to services to be provided and operating savings to be achieved; the high fee paid to the management company in relation to the management company's investment. We believe that the agreement, as presently constituted, is unfavorable in the following areas: the term is longer than what current industry trends would indicate could be achieved, management standards are not specified. t Certified Public Accountants 1000 BrickeU Avenue rjpta�Marwick, Mitchell&Ca Miami, Florida 33131 May 30, 1980 The Honorable Maurice Ferre Mayor of Miami City of Miami 3500 Pan American Drive Miami, Florida Dear Mayor Ferre: We have completed our evaluation of the proposed Management Agree- ment for the Dinner Key Marina between Biscayne Recreation Development Company (BRD) and the City of Miami. The purpose of the evaluation was to determine if the City of Miami would receive a fair rate of return under the terms and conditions of the Management Agreement. Based on our analysis, we have concluded that the City of Miami would not receive a fair rate of return under the present terms and condi- tions of the Management Agreement due to the following considerations: the low return to the City in light of the City's investment and risk; the high fee paid to the management company in relation to services to be provided and operating savings to be achieved; the high fee paid to the management company in relation to the management company's investment. We believe that the agreement, as presently constituted, is unfavorable in the following areas: the term is longer than what current industry trends would indicate could be achieved, management standards are not specified. RPeat.Marwick,MitcheII&CcL Certified Public Accountants 1000 Brickell Avenue Miami, Florida 33131 July 21, 1980 The Honorable Maurice Ferre Mayor of Miami City of Miami 3500 Pan American Drive Miami, Florida Dear Mayor Ferre: At the request of Mr. Richard Fosmoen, Assistant City Manager, we reviewed our study of the Dinner Key Marina Management Agreement (report dated May 30, 1980) to estimate the impact of a cap of $100,000 on the Operating Surplus for Biscayne Recreation Development Company. Such a cap would increase the return to the City of Miami from the original projection of 13.5% to 16.5%. At the same time the ten year return on investment to Biscayne Recreation Development would be decreased from 59% to 48%. While the impact of the cap is favorable to the City, the fundamental conclusions of our May 30 report remain valid. Sincerely, Pt.MWWK*MIdIdI&CQ The Honorable Maurice Ferre May 30, 1980 Page 2 compensation to the Company is based on an unusual approach and is high, in consideration of the scope of services provided, the operating savings achieved, and the relative risk taken. control over subletting is inadequate, the approach to project design and construction management is unusual and could be simplifed, and the approach to setting rates could lead to excessive management fees. We believe the agreement could be improved by incorporating some of the following considerations: Reduce the scope of the management agreement to incorporate only those activities that address the operation of the marina and its concessions. Revise the fee structure in accordance with the services proviced and in relation to industry trends. Establish specific management standards and incorporate controls over subletting. The information used to develop the projections has been obtained from published information and other sources that we consider appropriate. However, we have not verified the information and cannot assume responsibility for the accuracy of such material. Furthermore, the plans and the financing arrangements for the renovation have not been finalized as of May 30, 1980, the date of this report. We have received no opinion from legal counsel or professional PI'tatMsrWWkMftchtII&Co The Honorable Maurice Ferro May 30, 1980 • Page 3 architects and engineers as to the final cost estimates or whether the • proposed improvements will be in compliance with building ordinances and government regulations. Therefore, the projected capital costs and financing terms are subject to change. The projections have been prepared on the basis of the information and assumptions set forth in the report. Although we believe that the information and assumptions used constitute reasonable bases for the prep- aration of the projections, the achievement of any projection may be affected by fluctuating conditions and the occurrence of other future events that cannot be assured. Therefore, the actual results achieved ' may vary from the projections, and such variations could be material. The terms of our engagement are that we have no obligation to update this report or revise the projections because of events and transactions occurring subsequent to May 30, 1980. We appreciate the cooperation extended to us by the Mayor, Commis- sioners, administration and principals of Biscayne Recreation Development Company during our engagement. Sincerely, • • TABLE OF CONTENTS • PAGE 1 BACKGROUND AND STUDY OBJECTIVES ................... I-1 IIFINANCIAL ANALYSIS ................................ II-1 Discussion of Financial Projections .......... II-1 Bases of Projections ......................... II-7 III COMPARABLE MARINA MANAGEMENT CONTRACTS ............ III-1 • EXHIBITS FOLLOWING PAGE A-1 Projected Cash Flow - II-1 • First Case A-2 Projected Concession Revenues II-1 and Expenses B Projected Return on Investment - II-3 • First Case C Projected Cash Flow - II-3 Second Case D Dock Rates II-3 • APPENDIX A Management Agreement APPENDIX B Aerial Photograph • • • 17, • • • • • • it • • I - BACKGROUND AND STUDY OBJECTIVES The City of Miami has during the past two years negotiated a Management Agreement with Biscayne Recreation Development Company (BRD) for the renova- tion and operation of the Dinner Key Marina. The Agreement (per Resolution 80-62) originally evolved from a round of competitive bidding irritated by the City for a long-term lease of the Dinner Key Marina to private enterprise. Such a long-term lease was not entered into because of the desire to prevent the property from being tied up for 25 to 30 years by a single party and also because of the desire to finance the renovation of the Marina using less costly revenue bonds. Since BRD had been selected through the competitive bidding process, under the City's original request, the City Commission directed the City Administration to negotiate a shorter term Management Agreement with BRD. Generally, the Agreement calls for the City to issue revenue bonds to finance renovation of the marina based on the following project cost: Waterside improvements (piers) $3,500,000 Landside improvements: Marina related (office, showers) $350,000 Concessions related (office, store) 350,000 700,000 $ 4,200,000 Source: City of Miami Biscayne Recreation Development Company The bond issue required to provide for this project cost would be $4.805,000. BRD would provide three major types of services: I-2 (1) Marina Operations: Maintain and operate the premises and all improvements thereon, in good condition and repair, consistent with the operation of a first-class marina. • (2) Construction Management: Redevelop the Marina premises and expand the facilities in accordance with plans submitted and accepted by the City of Miami. (3) Concessions Administration: With the approval of the City, the Company would develop and operate supporting activities to the Marina such as laundry facilities, bait and tackle shop, food and beverage facility, yacht brokerage and the like. Concurrently with this negotiation, a change was made to the Charter • of the City of Miami "prohibiting the leasing for commercial use of., any City waterfront property...... which would not result in a fair return to the City based on two independent appraisals." (Resolution 79-563, • passed and adopted on July 24, 1979.) No technical definition or standard of "fair return" has apparently been adopted by the City in connection with the charter amendment. In order to comply with this charter amendment the • City advertised for bids and engaged Peat, Marwick, Mitchell 6 Co. The objective of our study was to evaluate the Management Agreement for Dinner Key Marina in order to assess the fairness of the rate of return to the City • of Miami. s< • I-2 (1) Marina Operations: Maintain and operate the premises and all improvements thereon, in good condition and repair, consistent with the operation of a first-class marina. • (2) Construction Management: Redevelop the Marina premises and expand the facilities in accordance with plans submitted and accepted by the City of Miami. (3) Concessions Administration: With the approval of the City, the Company would develop and operate supporting activities to the Marina such as laundry facilities, bait and tackle shop, food and beverage facility, yacht brokerage and the like. Concurrently with this negotiation, a change was made to the Charter • of the City of Miami "prohibiting the leasing for commercial use of, any City waterfront property...... which would not result in a fair return to the City based on two independent appraisals." (Resolution 79-563, • passed and adopted on July 24, 1979.) No technical definition or standard of "fair return" has apparently been adopted by the City in connection with the charter amendment. In order to comply with this charter amendment the • City advertised for bids and engaged Peat, Marwick, Mitchell 6 Co. The objective of our study was to evaluate the Management Agreement for Dinner Key Marina in order to assess the fairness of the rate of return to the City • of Miami. II - FINANCIAL ANALYSIS • In this chapter we present a summary of our analysis of the financial return to the City of Miami and BRD based on the terms and conditions of the Management Agreement. Discussion of Financial Projections In order to assess the return to the City of Miami from the Management Agreement, we: performed a detailed review of the terms and conditions of the Agreement with City representatives and BRD principals; reviewed the scope of the renovation project and its cost with BRD architects -engineers, the City of Miami and an independent architect -engineer retained by PMM&Co.; analyzed the historic operating performance of the Marina; and, based on the foregoing, • developed financial projections for the ten year initial term of the Agreement. Exhibit A-1 on the following page illustrates the projected cash inflows from the Marina, cash outflows for operations and debt service and payments made to = the City and BRD. Since detailed project design has not been completed, we had to make a number of assumptions which are detailed in the following section - Bases of Projections. Exhibits A-1 and A-2 show that: Rates would gradually rise from $.12 per foot per day (PFPD) ' to $.22 PFPD in 1985 which would correspond both to the renovation, the excess of demand over supply and to competitive rates for marinas on public land; • • • tohiblt A•1 CITY 0► NIANI - DINNSR tit Not" Projected Cobh flow - first Casa This exhibit has bees prepared an the basis of the information and assumption# set forth in the accsm►anyioe report. The achievement of any financial projection may be affected by fluctuating economic condition• and is dependent upon • the occurrence of other future events which cannot be assured. Therefore, the actual result• achieved may vary from the prejectieno, and such variation could be material. 07-01-10/ 01-01-61/ 01-01-e2/ 01-01-42/ 12-31-SO 12-31-60 12-31-82 12-31-43 Rate Assumptionat Liveaboards 10,365'1$.12 MOM 10,365-OS.14PIP0 11,25710S.16 PFFD 1e,ee0'el.18 PFPO Non•livea►oards 4,155' 0 .06 41155, ► .03 4,155' 0 .10 - Sailboats 20 a /41/Mo. 20 4 ISO/Mo. 20 ! 970/Mo. 20 0 190/110. Commercial beats 16 0 $69 16 0 175 16 t $90 16 0 $105 Transient bats I 42,000 I 98,000 I $0.000 I 54,000 Cash Inflowdt Rent$ • Llveabarda 1 227,000 530,000 656,000 1,240,000 Non-liveabacds 46,000 121,000 152,000 - Soilbosts 5,000 12,000 17,000 22,000 Commercial bats 7,000 14,000 17,000 20,000 Transient bats 42,000 95,000 $0,000 54,000 tub total 327,000 775,000 922,000 1,336,000 Investment Incomet Iasorve fund Renewal set replacement - - le 000 is 1g.000 520936 s 000 70,9% Sub total Total - 327,000 775,000 940,000 1,406,936 Cash Outtlowa) Operating and maintenance expense@ 207,000 440,000 470,000 500,000 Debt Service N A' M A N/A 243,506 • Total 207,000 440,000 470,000 743,506 Not cook flow available 120,000 335,000 470,000 663,430 payments to Cityt SOS debt service N/A N/A 243,506 243,506 1/15 bond issue N A N A N/A N/A Total - 243,506 243,506 Payments to SRD$ lc FFPD dockage 27,000 33,000 $6,000 69,000 1/lOp FFPD excess 8,000 16,000 41,000 Total 27,000 61,000 72,000 110,000 surplus Funds 93,000 274,000 154,494 309,924 50/50 split VIA N/A 77,247 154,962 totals to City$ Contractual payments - - 243,506 243,506 50/50 split 97,000 174,000 77,247 134,%2 Concession 1 600 23,375 $0,999 Total 93,000 274,600 344,12e 449,467 percent to total cash inflows 3e.32 35.49 36.6t 31.92 To "Of Coetcactual payments 27,000 $1,000 72,000 110,000 S0/50 split - 77,247 154,962 Concession income 12,400 (S.62S) (2,301) Total 27,000 73,400 154,872 267,263 • percent to total cash inflows e.21 9.52 16.52 19.02 (1) ?FFO - Rental rate per toot per day Source) p1M6Ca. (Continued) 20111111 A-1. Cent. CITY Of KIAMI - DIMMSR MST MARINA hojeated Calls flow - First Case This eshibit Me been prepared on the basis of the information and assumptions eat lorth in the accompanying report. The achievement of any financial projection may be affected by fluctuating economic conditions and is dependent upon the oteurreace of other future events Mich cannot be assured. Therefore, the actual results achieved may vary from the projections, and such variation could k material. 01-01-64/ 01-01-83/ 01-01-sb/ 01-01-87/ 12-31-94 12-31-85 12-31-86 12-31-17 Rste Aes%saptionat Livesboatds 22,366'01.20Py1FD 23,240's1.22 ?FPO Mast-liveaboarde - - Sailboats 20 0 I113/146. 20 4 1130/Mo. Commercial boats 16 1 1123 16 s $133 Transiest boats 6 136,000 1 220,000 Cook Inflows$ seats Liveoboards $ 1,633,000 1,666,000 Mae-liveaboards - - Sailboats 28,000 31,000 Commercial ►oats 24,000 26,000 Transient beats 136,000 220,000 Sub total 1,321,000 2,143,000 Investment Incomes Reserve fund 32.936 $2,936 Reaowal and replacement Sub total Is 000 700936 �ist00000 70,s76 Total 1,891,936 22. 13,936 2,435,000 (2) 2,679,000 Cash Outfiwst Operating and maintenance •xponaos 530,000 $60,000 • Debt sorvieo 487,011 467,011 Total 1,017,011 1,047,011 Not cash flow available $74,925 1,166,925 Payments to Citys $02 debt service 243,506 243,506 • 1133 bond issue 33,200 110,400 Total 2960706 333,906 payments to not - It PPPD dockage 82,000 si,826 1/104 PPPD excess 63,000 44,826 Total 147,000 169,652 surplus funds 429,219 643,367 30/30 split 214,610 321,684 totals to Citys ' Contractual payments 29s,706 333,906 30/30 split 214,610 321,684 Concession 2 s9.473 111,273 Total 602,769 746,86) $66,000 (2) 933,000 Fattest to total cash inflows 31.92 33.32 33.62 33.61 To not Contractual payments 147,000 169,652 30/30 split 214,610 321,694 Concession income 3,821 34.S27 Total 365,437 323,s63 579,000 (2) 637,000 percent to total cash inflows 19.32 2).ti 23.K 23.2 (1) PPPD - Rental rate per foot per day (2) saead on long term inflation rate of 102 annually sources 71444Co. (Continued) • 18%ibit A-1 Coat, f CITY OF NIANI - DIMIN KEY MARINA Projected Cook Flow - First Case This exhibit has boon prepared on the basis of the informetiw and assumptions set forth in the accrospanying report. The achievement of any financial projection may be affected by fluctuating economic conditions and is depandeltt upon the occurrence of other future events which cannot be assured, Therefors, the actual results achieved may very from the projections, and such variation could be mstarial. 0i-01-84/ 01-01-89/ 01-01-90/ • 12-31-98 12-31-89 06-70-90 Total Kate Assumptionsl Liveaboards Non-liveaboards Sailboats Cotaaarcial boats Transient boat* • Cash Inflowas Seats Liveaboards Non-liveaboards sailboats Co arcial boats Transient boats Sub total ' low stment incomes seeerve fund Renewal and replacement Sub total Total 2,947,000 3,242,000 1,783,000 20,640,906 Cash outflwst Operating and maintenance expenses • Debt Service Total Net cash flow available payments to City: 501 debt service 1/35 bond issue • Total payments to not - IC ►F►D dockajo - 1/log ?Fro excess Total Surplus Funds • 50/50 split Totals to Citys Contractual payments 10150 split Conversion 1 Total 1,048,000 1,153,000 634,000 7.204.M7 Percent to total cash inflows 35.62 35.62 23.61 t To We Contractual payments So/So split Concession income Total 701,000 711,000 424,000 4,323,833 Percent to total cash inflows 23.62 23.42 23.62 (1) prro - Rental rate per foot per day SOurcel RM&Co. • ixhi►it A-2 CITY OF MIAMI DINNER KEY MARINA Projected Concession Revenues and Expenses • This exhibit has been prepared on the basis of the information and assumptions set forth in the accompanying repbrt. The achievement of any financial projection may be affected by fluctuating economic conditions and is dependent upon the occurrence of other future events which cannot be assured. Therefore, the actual results achieved may vary from the projections, and such variation could be material. 07-01-80/ 01-01-81/ 01-01-62/ 01-01-83/ 01-01-84/ 01-01-85/ 12-31-80 12-31-81 12-31-82 12-31-83 12-31-84 12-31-85 Revenues: Laundry (1) - - 2,000 6,000 6,000 $ 6,000 Bait, Tackle, Food (2) - - 25,000 150,000 300,000 500,000 Gasoline (3) - = 90,000 153,000 168,300 185,300 193,800 Brokerage (4) - - - 100.00 240,000 Total - 90,000 180,000 324,300 591,300 939,800 Expenses: Laundry - - - - - Bait, tackle, Food - - 21,000 128,000 255,000 425,000 Gasoline (3) - 00 77,030,000 1 143,000 158,000 165,000 . Brokerage - - - _$5,000 204,000 Total - 77,000 151,000 271,000 498,000 794,000 Net Income (Lose) - 13,000 29,000 53,300 93,300 145,600 Payments to Cityl Contractual - - 21,175 42,349 68,323 73,123 It Callon - 600 $50 850 850 850 102 Net Profit or 5% of Cross Revenues 1,350 7,800 20,300 37,300 - 600 23,375 50,999 89,473 111,273 Balance to BRD - 0 12,400 5,625 2,301 3,827 S 34,527 (1) Laundry estimated at $500/month net pre-tax income. (2) Sales potential for bait, tackle, food estimated at $500,000/year upon completion. Pre-tax profit margin estimated at 15% exclusive of rent. (3) Sales projected as follows based on a fule allocation of $5,000 gallons: Callon@ Estimated Total Costs at Year Sold Price Sales 852 1980 - - - - 1981 60,000 1.50/Cal 90,000 77,000 1982 $5,000 1.80 153,000 130,000 1983 $5,000 1.98 168,300 143,000 1984 $5,000 2.16 185,300 158,000 1985 85,000 2.28 193,800 165,000 (4) Brokerage based on: (a) 5 brokers generating $600,000 in volume each at full capacity. (b) Effective commission rate of 82. (c) 152 pre-tax profit margin exclusive of rent. Source: PMH&Co., BRD ME] • II-2 Rent from dock space would continue to be the major source of cash inflows as opposed to concessions; and Operating and maintenance expenses for the marina would also gradually rise at a slower rate than rental revenue reflecting an increased number of slips and inflationary pressures. A payroll and operating savings of approximately $100.000 per year would be realized through private management; Debt service would be higher under today's financial conditions than that previously estimated and is separately allocated to the marina and the concessions; Permitting would take approximately 18 months with construction beginning in 1982 and completion by mid-1984; Debt service would be met without difficulty and operating surpluses would be experienced from the outset. Surpluses would not be split until 1984 in accordance with the Agreement; Payments to the City in the first full year of operation (1985) would amount to approximately $787,000 from contractual payments, split of operating surpluses and percentage of con- cessions or $7,205,000 over the initial term of the Agreement; and Payments to BRD would amount to approximately $526,000 in 1985 or $4,526,000 over the initial term of the Agreement. Considering the scope of services provided by BRD, the operating savings achieved, and the relative risk taken, we find, under these assumptions, the fees paid • are high and that the return to the City of Miami is not fair. The investment by BRD has been estimated as follows: Costs of negotiation (1) $ 100,000 • Preliminary engineering and permitting (2) 100,000 Construction management (3) 140,000 Furniture, fixtures and equipment (4) 180,000 f $ 520,000 (1) Source: BRD (2) Management Agreement Paragraph 6 (3) City of Miami Public Works Department (4) BRD II-3 U The investment by the City of Miami may be considered as the capitalized value of the marina based on current operating results and the improvements. • The estimated return on investment for the City and BRD is shown in Exhibit B on the following page. The estimated return to the City is 13.5% while BRD is earning an estimated 59% after-tax compound return on investment. We believe this return is not fair since the City is taking the major financial risk. Because the estimated payments and returns to the City and BRD are • highly sensitive to rental rate increases we analyzed a Second Case as shown in Exhibit C. In the Second Case we assume that rates are not increased as rapidly as in the First Case. • The payments shown in Exhibit C, while lower to BRD, are still high in comparison to services provided, operating savings achieved and relative risk taken. The estimated return to the City based on this case is 6.5% • and to BRD is 25%. Under these assumptions we also find the return to the City to be inadequate. Bases of Financial Projections In this section we outline the basis for each line item of the financial - projects. Rate Assumptions • The present rate structure at Dinner Key Marina is shown in Exhibit D on the following page along with rates at other marinas in the area. Rates 41 ME EXHIBIT B CITY OF MIAMI - DINNER KEY MARINA O PROJECTED RETURN ON INVESTMENT - CITY OF MIAMI: A CASH YEAR OUTFLOW CASH INFLOW (000 s of dollars) 1980 -$6,727 +$ 93 1981 + 275 1982 + 344 1983 + 449 1984 + 603 1985 + 787 1986 + 866 1987 + 953 1988 +1,048 1989 + 1,153 1990 +13,314 Estimated After -Tax Return on Investment: 13.5% • BRD: CASH YEAR OUTFLOW CASH INFLOW (000 s of dollars) • 1978 -$ SO 1979 - 50 1980 - 50 +$ 27 1981 - 50, - 50 + 73 1982 - 50, - 50 + 155 1983 - 40, - 50 + 267 • 1984 - 80 + 365 1985 + 526 1986 + 579 1987 + 637 1988 + 701 1989 + 771 ! 1990 + 424 Estimated After -Tax Return on Investment: 59% • NET CASH FLOW -$ 6,820 + 275 + 344 + 449 + 603 + 787 + 866 + 953 + 1,048 + 1,153 + 13,314 NET PRETAX CASH FLOW -S 50 50 23 27 + 55 + 177 + 283 + 526 + 579 + 637 + 701 + 771 + 424 ahib • CITY 0► MIAM1 - 01101911 KIT MARINA Projected Cash flow - second Case This exhibit has been prepared on the basis of the information and assumptions set forth in the accompanying report. The achievement of any financial projection may be affected by fluctuating economic conditions and is dependent upon • the occYtrance of other future events which cannot be assured. Therefore, the actual results achieved may vary from the projections, and such variation could be material. 07-01-SO/ 01-01-SI/ 01-01-e2/ 01-01-63/ 12-31-60 12-31-50 12-31-e2 12-12-83 Rate Assumptions$ Livesboards 10,36S'SI.IOPFPD(1) 10,365'@$.IOSPFPD 11,237'03.135PtPD 16,650-0s.136PIF0 Mon-liveaboards 4,135 0 3.05 4,155 E $.06 4,155' ! I.OS - Sailboats 20 0 I41/No. 20 0 ISO/Mo. 20 ! I10/Mo. 20 a I90/Mo. Commercial boats 16 0 $69 16 0 $75 16 ► $90 16 0 $105 Transient boats 9 35,000 I 70,000 I 50,000 I 30,000 Cash Inflows I Rent Live aboard I I86,570 391,797 $46,11e 924,363 • Non-liveaboards 37,39S 09,746 119.664 Sailboats 4,920 12,000 11,600 21,600 Commercial boats 6,624 14,400 17,250 20,160 Transient boats 35,000 70,000 50,000 30,000 Sub total 270,509 577,945 749,862 996,125 Investment Ieceme$ Reserve fund - - 52,936 • Renewal replacement le 00000 -Ig 00000 Sub total - 1e,000 70,936 Total 270,50E S77,943 767,962 1,067,061 Cash outflows, operating and maintenance expenses 207,000 "0'000 470,000 500,000 Debt service N/A • NIA N/A 243,506 Total 207,000 "0'000 470,000 743,506 Net rash flow available 63,509 137,945 297,062 323,555 �Y payments to City$ S01 debt service N/A N/A -4!,506 243,506 1135 bond issue N/A VIA N/A N/A Total - - 243,506 243,506 Payments to SRD$ 14 PIPD dockage 26,136 52,272 55,411 67,968 1/104 IFFD excess 6,06e 10,875 Total 26,136 52,272 61,479 7e,e43 Surplus funds 37,373 85.673 7,123 1,206 50/50 split N A� �3 • Totals to City$ Contractual payments - 243,506 243,506 50/50 split 37,373 SS,673 3,562 603 Concession 1 600 23,375 50,999 Total 37,373 86,273 270,443 295,10e Percent to total cash inflows 13.82 14.92 35.22 27.72 To SRD$ Contractual payments 26,136 32,272 61,479 76,163 50/50 split - - 3,S62 603 Concession income 12,400 5,625 2,301 Total 26,136 $4,672 T 70,666 11,067 percent to total cash inflows 9.72 11.22 9.21 7.62 (1) ►FFD - Rental rate per foot per day Source= PMN&Co. (Continued) sabibit C. Cant CITY OF TRAMI - DtW9A 991 MAXIMA Projected Cash Flaw - Nteed Case • This exhibit has been prepared as the basis of the information and assumptions not forth in the accompanying report. The achievement of any financial projection may be affected by fluctuating economic conditions and is dependent upon the Occurrence of other future events which cannot be assured. Therefore, the actual results achieved may very from the Projections, and such variation could be material. 01-01-64/ 01-01-83/ 01-01-s6/ 01-01-87/ • 12-31-84 12-31-85 It-]1-s6 It-]1-t7 late Assumptiones Liveaboards 22,366'9$.152PFPD 25,240-91.155PrPD Mon-liveaboards - - Sailboats 20 0 $115 20 9 $150 Commercial boats 16 P $125 16 P $175 Transient boats 9 68,000 9 100,000 Cosh Iefla+ar Xentt Liveaboards 8 1,223,977 3,296,792 Mon-liveaboards - - Sailboats 27,600 71,200 Commercial boats 24,000 25,920 Transient boats 66,000 100,000 tub total 1,343,577 1,453,912 Investment Incomes Reserve fund 52,956 52,936 Renewal replacement Imo! 000 is 000 Sub total 7076 ,9 7)6 0,9 Total 1,414,513 1,524,948 1,676,000 (2) 1,945,000 Cash Outflwst Operating and maintonanee expenses $30,000 560,000 Debt service 487,011 487,011 Total 1,017,011 1,047,011 » Not cash flaw available 397,SO2 477,837 Payments to City$ 502 debt service 243,506 243,506 1/73 bone issue 5S,20O 110,400 Total 298,706 353,906 Payments to SRDs IC tfPD dockage 60,523 $7,664 - l/lop FFPD excess 25,761 29,282 Total 106,295 112,946 surplus Funds (7,497) 10,985 50/50 split ---a -5.491 Totals to City$ Contractual payments 298,706 352,906 SO/SO split 0 5,495 Concession 2 89,473 111,273 Total 358,179 470,672 S14,000 (2) 570,000 Percent to total cash inflows 27.42 70.92 70.92 30.92 To UO3 Contractual payments 106,293 112,946 SO/SO split 0 5,493 Concession income 3,627 54.527 Total 110,120 152,966 166,000 (2) 165,000 16 Percent to total cash inflows 7.81 10.01 10.02 10.01 (1) PIPD - Rental rate per foot per day (2) Used on a long term inflation rate of 101 annually Sources PMM4Co. IV (Continued) R*AIHt C. Cent. CITY 0/ MIAMI - DINNER SST MARINA Projected Cook flow - &stand Case This exhibit has boon prepared on the basis of the informstian and assumptions tot forth in the accompanying report. The achievement of any financial projection may be affected by fluctuating economic conditions and is dependont upon the occurrence of other future events which cannot be assured. Therefore, the actual results achieved may vary from the projections, and such variation could be material. 01-01-66/ 01-01-59/ 01-01-90/ 12-31-56 12-31-69 06-30-90 Total 9 • Sete Ass uiptionst Livesboards Non-►ivesboards Sailboats Comarcial boats Transient boats Cash Inflwet Sent$ Liveaboards Non-liveaboards Sailboats Commercial boats Transient boats Sub total Investment Income: Reserve fund Renewal and replacement Sub total Total Cash Outflows$ Operating and maintenance "Ponaea Debt sorvice Total Not cash flow available ►aymests to City$ 302 debt service 1/33 bond issue Total Payments to RRDt 1t P/FD dockage I/l00 PIPD excess Total Surplus Funds 30/30 split Total* to Cityt Contractual payments 50/30 split Conversion 2 Total Percent to total cash inflows To 6SD$ Contractual payments 30/30 split Concession ineame Total Percent to total cash inflows (1) ►IFO - Rental rate par teat per day Sources PN14C0. 2,030,000 2,233,000 1,228,000 627,000 690.000 3E0,000 30.92 30.92 30.91 204,000 224,000 123,000 10.02 10.02 10.02 14.636,73E 4.333,04E 1,409,627 w Lm DINNER KEY MARINA: Slip Length 30' f 35' 40' 45' 50' 65' 80' 85' EXHIBIT D CITY OF MIAMI - DINNER KEY MARINA DOCK RATES Class A (Liveaboard) (1) $120/month $.10 PFPD 135 .10 150 .10 195 .10 240 .10 255 .10 Class B $45/month $.05 PFPD 50 .048 60 .05 75 .05 95 .049 40' Commercial $66/month 40' Sailboat concession $31/month Transient dockage: $.20 PFPD based on boat length 20% discount to City resident Rates are subject to 4% State Tax Rates include electricity and water LOCAL COMPARABLE RATES: Winter Summer Dinner Key Class A (Liveaboard) (1)(2) $.10 PFPD $.10 PFPD Class B .05 .05 Transient Marina Biscayne k2) .19 .19 Miamarina .20 .20 Crandon Park (Dade Coun42) (2) .08 .08 Matheson Hammock (Dade County) y (2) .09 .09 Homestead (Dade County) .07 .07 South Miami Beach (3) .40 .40 Plaza Venetia (2) .30 .30 Nautical Marina (2) .35 .35 Bahia Mar (Ft. Lauderdale) (2) .55 .35 Pier 66 (Ft. Lauderdale) .45-.60 (2) .30-.40 Merrill -Stevens .28 .28 Monty Trainer's .19 .19 1) Liveaboard docks include finger piers. Includes electricity and (3) water. Excludes electricity and water. SOURCE: Individual marinas. 1 TRANSIENT Winter Summer $.20 PFPD .19 .20 .20 .20 .167 .55 .40 .45 .55 .30-.40 .30 .33-.50 $.20 PFPD .19 .20 .20 .20 .167 .55 .40 .35 .30-.40 .30 .33-.50 A II-4 w is • • • J i at Dinner Key compare favorably at present and it can be seen from the Exhibit that rates could be raised significantly and still remain attractive to the boater. We have assumed rate increases of $.02 PFPD each year through 1985 in light of: incentives to raise rates by the City and BRD; opposition to excessive rate increases by tenants; and renovation of the marina. In the Second Case we assumed rate increases sufficient to meet revenue bond requirements without large operating surpluses. Because of present difficulties with the placement of moorings, moorings revenues were not projected. Rent Rent was computed based on the assumed rates, linear footage of dock (increasing through 1985) and number of days per year. Investment Income Investment income was computed based on reserve requirements at an interest rate of 10%. Operating and Maintenance Expenses Operating and maintenance expenses were projected on estimates by BRD which were based In turn on the historic operating experience of Dinner Key Marina. The expense reflects a significant saving by private enterprise of approxi- mately $100,000 through increased operating efficiencies and the elimination of civil service costs. It should be specifically noted that the operating expenses include the staff of the marina up thru the level of Dockmaster. The section Payments to BRD represents management fees in addition to all expenses shown. 11-5 Debt Service Debt service computations were made by William R. Hough b Co., investment bakers to the City, based on a project cost of $4,200,000, interest rate of 10%, and level annual payments of principal and interest through the year 2007. Payments to the City and BRD Payments to the City and BRD were computed in accordance with the terms and conditions of the Management Agreement. Surplus Funds Surplus funds were computed after payment of operating and maintenance expenses, debt service, and contractual payments to the City and BRD required in the Management Agreement. Division of surplus funds was on a 50%/50% basis to the City and BRD per the Management Agreement. • • LI III - COMPARABLE MARINA MANAGEMENT CONTRACTS During our study, we contacted numerous municipalities, government agencies, marina industry publications, and marina industry associations in an effort to obtain copies of management agreements for the operation of public marinas by private enterprise. Although there are many examples of long-term leases throughout the country, we were unable to obtain copies of management agreements for public marinas operated by • private enterprise. According to a consultant to the Marina Del Rey project (Los Angeles County, Ca.), there are marinas in California which are privately ' owned and operated by professional management on a short-term management contract basis. The typical management fee for these contracts is no more than 5% of gross revenues above staffing expenses for the management company. Because these agreements are proprietary, we were unable to • obtain copies or further details. Since BRD is also making an investment in preliminary engineering, permitting and concessions equipment and is providing construction management services, direct comparison to other management agreements is not possible. The apparent reasons for the lack of management agreements or contracts • as an operating vehicle in the marina industry are: the preference of many municipalities and owners to enter into long-term leases for the combined development and operation of marinas; • a lesser need to hire professional management companies with strong marketing and technical operating skills such as is often required in the hotel and restaurant industries. (Since demand is generally greater than supply, marketing skills are of secondary importance and marinas are generally not as technically difficult to manage as hotels or restaurants.); and • • a 111-2 f the willingness and ability of many municipalities (such as Dade County) to successfully self -operate marina facilities. . Since the City of Miami has dismissed the alternative of a long-term lease for the Dinner Key Marina and since the structure of long-term leases is different than management agreements, comparison of the Dinner t Key Marina Management Agreement with long-term leases is not considered appropriate. S • A L • • f 4 APPENDIX A is 41 • • f J 0 i%i4/80 RESOLUTION NO. 6 0 - 6 $ .. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE THE ATTACHED AGREEMENT BZTVZZN BISCAYNE RZCREATIO14 DEVELOPMENT COMPANY AND THE CITY OF MIAMI FOR THE MAHAGEMFNT OF THE DINNER KEY MARINA COMPLEX, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH THEREIN, UPOU THE FURTHER CONDITION THAT THE AFORESAID AGREEMENT SHALL DULY BECOME EFFECTIVE UPON THE PROPOSED ATTACHED ORDIUAIICE BECOMING EFFECTIVE. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDAr Section 1. The City Manager is hereby authorized to execute the attached agreement between Biscayne Recreation Development Company and the City of Miami for the management of the Dinner Key Marina Complex, subject to the terms and conditions set forth therein, upon the further condition that the aforesaid agreement shall only become effective upon the proposed attached ordinance becoming effective. PASSED AND ADOPTED this _ 24day of JANUARY , 1980. MAURICE A. FERRE M A Y 0 R TEST RALPH G. ONGIE CITY CLERK PREPARED AND APPROVED SYr • G OBERT F. CLARX ASSISTANT CITY ATTORNEY • • CRY COMMISSION • MEETING 06 JAN1419©0 8 0 - 6 P S MANAGEMENT AGREEMENT THIS AGREEMENT made and entered into this day of January, 1979, by and between the City of Miami, a Municipal Corporation of the State of Florida, hereinafter referred to as "The City" and Biscayne Recreation Development Company, a Florida Corporation, hereinafter referred to as `The Company", W I T N E S S E T H: WHEREAS, The City currently owns and operates the property and facility commonly known as the Dinner Key Marina; and WHEREAS, The City Commission desires to have private initiative and enterprise reconstruct and redevelop the Dinner Key Marina site into a first class operating marinas • and WHEREAS, The City has advertised for Public Proposals for the lease and operation of'the Dinner Key Marinas and • WHEREAS, The Company along with several other proposers wade public proposals in accordance with the "bidding" documents and WHEREAS, The Company offered to renovate and design a • new marina facility with private capitals and WHEREAS, The City now desires to finance the reconstruc- tion and development of the marina with monies from revenue • bonds in order to keep the interest cost of repayment to a minimum in consideration of lower.dockage rates for tenants and in order not to encumber said premises with a long term possession contract, and • WHEREAS, The City has rejected all proposals for a long-term lease and operation of Dinner Key Marinas and WHEREAS, The City Commission directed the Manager to negotiate a short-term management contract with Biscayne Recreation Development Company; and • 0 4 4 r • • 0 WHEREAS, The Company is both desirous and capable of construction management, and management i operation of the facilities at said marinas and WHEREAS, The City and The Company have negotiated this Agreements NOW THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter contained to be observed and performed, the parties hereto agree as follows: 1. DESCRIPTION OF PREMISES The parties hereby agree that an accurate description of the managed premises, hereinafter referred to as "The Facility", "Property" or "Premises", is shown on exhibit "A" attached hereto and made a part hereof. 2. TERM a. Basic Term The Term of this Agreement shall be for a period of ten (10) years including the time for permitting and construc- tion. This Agreement shall commence on the day of. , 197_. b. Preferential Right to Renew The Company shall have a preferential right and option to renew this Agreement upon the same terms and conditions at the and of the initial term for a (5) year period provided as follows: The City shall rate The Company on its operation at least two (2) times per year at six (6) month intervals. The rating shall be based upon the condition of the docks and piles and the maintenance and cleanliness of the grounds and facilities. The Company shal•1 be entitled to its preferen- tial right and option to renew if its'ratings have been generally satisfactory for the initial term of this Agreement. The Company shall give The City notice of its intent to exorcise this right at least sixty (60) days prior to the expiration of the Agreement. -2- c. Cooperation with Consulting ingineers The Company shall cooperate with such consulting engineers, or other consultants, as may be designated by engineers under the Bond Ordinance, in making an annual inspection of the marina facilities and reporting their findings as to whether such facilities have been maintained in good repair, working order and condition, and their recommendations as to (i) changes, if any, in the operation, repair and maintenance of the facilities during the ensuing fiscal year and an estimate of the cost therefor, and (ii) the amount that should be deposited during the ensuing fiscal year to the credit of the Renewal and Replacement Fund, and (iii) any revisions of rates, rents, fees and charges. 3. USE The Company, as the management agent for The City, shall be the exclusive agent of The City and shall operate the Facility during the term of this Agreement. For the consideration provided in.paragraph four herein; The Company shall operate the property for a small boat port, marina and recreational facility, offering dockage and other marina related services, for the use of and by the general public. Services shall include but not be limited to the following: 1 a. Dockage and mooring of boats. b. A boat ramp facility, which shall be open to the public and for which no charge shall be made. C. Shower and restroom facilities for use by those persons docking and mooring boats. d. Closed circuit T.V. security system for the docks. e. Security system for moorings. • f. Sailboat, charter boat and commercial boat rentals.1/ g. Coin operated laundry facilities. Is. Maintenance of landscaping, perimeter walkway and lighting. 1. Sale of bait, tackle and ice. ---..... l:__Sale_ot_marine_ hard_ware_______________ -------------------------------- 1/ The City retains for itself the right.to control sailboat conces- . sione at the present location at Dinner Key or at such future location as provided within the redevelopment plan for Dinner Key Marina. • -3- • 0 L • 11 P, • • • C • k. Saie of take-out food and beverages including beer. 1. Sale of fuel. n. Launch services for moored boats. n. boat sales and boat brokerage, provided, however, that a maximum of five percent (S%) of the total number of slips shall be used for such purposes. o. All other related services in accordance with City of Miami toning Ordinance and subject to the approval of the City Manager, which shall not be unreasonably withheld. The Company further agrees that during each year of the terms of this Agreement and any extensions thereof, pier S, or any equivalent pier, shall be made available to such party as The City may designate as its contractor for purposes of con- ducting two annual Boat Shows. The fees charged by The Company to such designated contractor shall be an amount no greater than the total normal daily rental rate then in effect for each of the slips on said pier multiplied by the number of days of actual use. 4. CONSIDERATION A. Notwithstanding any other provisions of this Manage- s►ent Agreement, The City and The Company covenant and agree that the obligations, duties and responsibilities of each of the par- ties imposed under this Management Agreement shall be subject to the applicable provisions of the ordinance ("Bond Ordinance"). authorizing the issuance of the revenue bonds for the Marina Facilities. D. Basic Consideration As consideration for the efficient management, operation and maintenance of the property throughout the period of this Agreement, the parties covenant as follows: Upon execution of this Management Agreement, The City shall pay from the gross receipts, as herein defined, its monthly oper- ating expensest next, The City shall pay The Company one cent (10) per foot, per day, for;dock space leasedt next, -4- I f 4 6 • • • • s • • • any excess revenues shall be deposited in a construction reserve account which shall be used to reduce the amount of any bonds required for reconstruction and expansion of the marina facility. In the event, notwithstanding due and diligent effort by the parties, that the Project as contemplated cannot be permitted, or a sufficient amount of The City's revenue bonds cannot be sold within two years of the date of this Agreement at a reasonable interest cost, not exceeding the then prevailing revenue bond rate, then any remaining revenue, after expenses and management fees, shall go fifty (501) percent to a construction reserve fund for major repairs and renovation and fifty (SO%) percent to The City. The City shall not be obligated or liable to The Company for any such failure or inability to obtain construction permits or to sell such revenue bonds. C. Consideration After Permitting or Receipt of Bond Proceeds Upon receipt of all permits necessary for reconstruc- tion and expansion of the marina facility or upon receipt of bond proceeds issued for reconstruction and expansion, whichever comes first, The City shall first pay from gross receipts the monthly operating expenses based upon monthly requisitions from The Company. The City shall deposit the balance of the money in the Revenue Fund to the credit of the various funds and accounts established under the Bond Ordinance. Said funds and accounts shall provide to The City a sum equal to one hundred fifty (1500percent of the Bond Service requirement for the Marina Facility except for concession Improvements. The City shall pay to The Company on a monthly basis from money in the surplus fund a fee of one cent (10) par foot, per day, for dock space leased and ten percent (10%) of gross revenues produced by mooringst and at such time as the finger pier dockage rate exceeds twelve cents (12t) per foot, per day, The City shall pay to The Company an additional one -tenth of one cent (1/10th of 10) per foot, per day, for each one cent (10) that the finger pier dockage rate exceeds twelve cents (120) per foot, per day. All -5- remaining money from gross receipts shall within sixty (60) days of the end of each fiscal year be divided equally between The Company and The City. D. Definition of Completion Completion of the facility shall be defined as acceptance by the City through issuance of a certificate of occupancy. L. Handling of Revenues . The Company agrees that all revenues and other income of the marina facilities, including collections of rates, rents, fees and charges and all other income derived or arising from or in connection with the operation, repair, maintenance and management of the Marina Facilities, excluding, however, income from concessions which The Company may operate as hereafter set forth in Subsection "g", will be collected and deposited daily, as far as practicable, in the name of The City, to the credit of the Revenue Fund established under the Bond Ordinance. F. Bond Service on Concession Improvements The Company shall also pay to The City its monthly bond • service requirement on any concession improvements for which bond funds may be required or used. In addition, The Company shall pay to The City one half (1/2) of the monthly bond service requirement for said concession improvements, plus an additional sum on an annual basis equal to 1/35th (one thirty- fifth) of the cost of construction of such space provided for said concession improvements for depreciation, replacement and • repair. Payment of the aforesaid sums shall begin after the completion of said construction. Finally, The Company shall pay to The City one cent (5.01) per gallon of fuel sold at • the marina. G. Revenues from Concessions The Company shall be entitled to operate any concessions or to enter into percentage agreements with concessionaires to • provide the services set forth hereafter. The Company will pay the City the following considerations arising out of the operation • -6- of the concessions listed below, namely: ten percent (10%) of The Company's gross revenues earned from concessions contracted to third party concessionaires; or ten percent (10%) of The Company's net profit, but not less than five percent (5t) of The Company's gross revenues earned from all concessions operated by The Company at Dinner Key Marina. The services referred to herein are: i (1) Security systems for moorings (2) Coin -operated laundry facilities (3) Sail of bait, tackle and ice (4) Sale of marine hardware (5) Sale for consumption, off the premises, of food and beverages, including beer, but not other alcoholic beverages (6) Sale of fuel; however, The Company shall pay The • City one cent for each gallon of fuel pumped (7) Boat maintenance and repair (8) Boat brokerage services providing that any boat • for sale shall pay the full price for moorings and for wet slip storage. Brokerage slips shall be limited to five percent (5%) of the total new lineal footage available for lease after construc- tion exceeds the lineal footage currently available (9) Other services subject to the City Manager's approval • in the event The Company chooses not to provide any of the above services, The City may negotiate a direct concession for these services. A. Definitions i Operating expenses shall be defined as salaries paid to the dockmaster, assistant dockmaster, dock workers, bookkeeper, receptionist, secretaries, typists and other employees • providing direct services to tenants; social security and other employee benefits; legal expenses; auditing; office expenses; miscellaneous supplies and equipment; utilities and waste removal; insurance; ordinary maintenance and • L. repairs and advertising and promotion. (Further, annual operating expenses shall include a depreciation reserve and replacement amount equal to one -thirty-fifth (1/35th) of the total amount of the bond issue used, excluding concession space. Such funds shall be deposited, on a monthly basis, S with The City and shall be availabli for extraordinary repairs • and replacement expenses that will extend the life of the facility. Ordinary repairs necessary for proper maintenance and operation of the facility shall be the responsibility of The Company through its annual operating budget.) The term "gross sales" as used herein shall be considered synonymous and interchangeable with the term "gross receipts" and shall include all income collected by The Company from the operation and management of the facility. Bond service requirement as used in this Agreement shall mean the amount in any fiscal year which would be necessary for The City to pay the sum of the amount to be deposited in the interest account and the amount to be deposited in the principal account on its revenue bonds if all bonds were amoritsed in equal installments over a period of not less than twenty-five (25) years. Monthly bond service requirement Is one -twelfth (1/12t)1 of the bond service requirement. S. MANAGEMENT SERVICES a. The Company shall deliver on or before the fifteenth (15th) day of each month, beginning with the • second month of this Agreement and continuing each and every month thereafter during the effective period hereof, at the office of the Department of Finance of The City, or at such other place as may be designated hereafter by The City the aforementioned monthly -payments. Along with said • - 8- payment, The Company shall provide an operating statement in certificate form signed by a duly authorized officer of The Company setting forth in such detail as the Director of Finance of The City may prescribe, the amounts of gross sales. b. Charges and Handling of Money • The Company shall offer, make and keep the Marina raeilities available for use by the general public and shall charge and collect the rates, rents, fees and charges for the services rendered by or for the use of such facilities in conformity with the schedule thereof as prescribed or authorized by The City. The Company shall supervise and control the hand- ling of all money received in the operation of the Marina Facilities and shall establish an adequate system of internal controls, satisfactory to the City Manager. covering the receipt and expenditure of money and the maintenance and operation of marina facilities and shall prepare all appropriate operating and financial reports and statements necessary or appropriate under this Management Agreement. C. Certain Rights, Duties and Responsibilities of The Company The Company and The City agree that The Company shall operate, maintain, repair and manage the marina facilities for The City as an independent contractor in accordance with this Management Agreement and subject to such rules and regulations and schedules of rates, rents, fees and charges, including any revisions thereof, from time to time in effect, as prescribed or authorized by The City. The Company shall operate, maintain, repair and manage the marina facilities, and shall maintain such facilities in a neat and orderly fashion consistent with such high standards and shall render first class, high quality, courteous service to the general public. The Company is empowered to manage the marina facilities and is hereby authorized to exercise such management power as it deems reasonably necessary for t! • -9- orderly, safe, sanitary and secure use of such facilities in accordance with applicable laws, regulations, ordinances and rules of the City. d. Current Expenses The current expenses incurred in the operation, repair, maintenance and management of the marina facilities shall be paid out of the Revenue Fund in conformity with the budget in effect at the time and the Bond Ordinance. a. Renewal and Replacement Fund Expenditures Expenditures of money in the Renewal and Replace- ment Fund shall be made by The Company in conformity with the Bond Ordinance and the budget. Current expenses and expenditures of money in the Renewal and Replacement Fund shall not exceed the reasonable and necessary amount therefor; provided that in the event of any emergency The Company may make urgent expenditures not within the purview of the budget with the approval of the City Manager or his designee. f. Company as Manager This Management Agreement establishes Thu Company as the manager and operator of the subject facility, and any person dealing with The Company shall have the right to rely fully on its power and authority to bind the facility with regard to the use and occupancy thereof, excepting however, The Company shall not have the authority to encumber real or personal property except as provided in this Agreement. The parties hereto intend that The Company shall be an independent oontractor, and the employees and agents of The Company shall attain no rights or benefits under the Civil Service or Pension Ordinances of The City, nor the rights generally afforded class- ified or unclassified employees of The City, nor shall The Company or its employees be entitled to Florida workmen's Compensation benefits as employees of The City. 0 -10- The Company shall have the sole control of the manner and means of performing this Agreement subject to The Company comply- ing with the terms of this Agreement. The Company shall have the full power and authority to take all actions to bring about an efficient operation of the marina and to maintain it as a first class marina, except for actions specifically prohibited in this Agreement. The Company shall have the exclusive authority to hire and discharge all of its employees necessary for the operation of a marina facility and to fix their compensation and privileges. g. Professional and Technical Services The Company may employ technicians and consultants to ! provide such legal, accounting and other professional or techni- cal services as The Company deems advisable for the proper main- tenance and operation of the Marina racilities, subject to the budget for the then current fiscal year. ! h. Additional Responsibilities For consideration provided in Paragraph 4, The Comp:.ny shall, as a minimums (1) Provide The City with an estimate of required operat- ing expenses for the forthcoming fiscal year subject to approval by the City Manager, which approval shall not be unreasonably withheld. (2) Maintain books and records in sufficient detail to meet acceptable accounting practices. Said books and re- cords shall be accessible to The City at reasonable ! times. (3) be responsible for hiring and discharging all employees related to the operation and normal maintenance of the facility. (4) Provide normal and routine maintenance of the facility In order to insure that the property remains in a good state of repair, free from hazardous conditions ! and deterioration. (S) be responsible for the administration of all Leases of the marina facilities, including, but not limited to the collection of all sums due from Tenants and the -11- general public for the rental and use of facili- ties, including, but not limited to slip rentals, mooring fees, dockage fees and fees of any nature for use by said public of the subject premises. The Company is authorised and empowered and is granted the responsibility to pursue all appropri- ate legal action as is necessary to collect unpaid -obligations and enforce all Landlord's rights, in- _ cluding the pursuance of all legal remedies avail- able for such purposes subject to the provisions of the City Charter. The City agrees that the responsibility of The Company herein provided shall be pursued in the name and on behalf of The City. (6) The Company shall furnish an adequate fidelity bond In the amount of not less than Fifty Thousand Dol- lars ($50,000) requiring The Company to quarterly account for revenues it receives on behalf of The City in accordance with the provisions of this Agree- ment. (7) The Company shall be responsible for the complete operation of the Dinner Key Marina Complex as de- fined and legally described herein. (8) The Company will institute management systems, secur- ity systems, training and staffing programs , promo- tional and advertising programs and financial con- trol systems that will y provide a secure financial operation and achieve tiie objectives of The City for the Dinner Key Marina. �► (9) The Company will act as manager for the redevelopment and reconstruction of the Dinner Key Marina facility at the present location so that the marina will be a public waterfront recreation facility at the present site. This reconstruction will be financed by The City through Revenue Bonds. The construction and renovation will comply with all governmental rules and regulations. ,I 1-a rl 06 LI it (10) During the term hereof, The Company will maintain and operate the premises and all improvements thereon, in good condition and repair consistent with the operation of a first class marina. (11) The Company shall be responsible for all claims, suits, actions and damagos that may arise as a re- sult of the negligence of The Company's operation of this facility. (12) Company will not allow any signs or advertising material to be placed on the exterior of any structure in the facility. (23) Except for dockage and mooring, The Company will not subcontract any portion of the marina operation without the prior consent of the City Manager which shall not be unreasonably withheld. (14) The Company will abide by and enforce all rules and regulations now.in effect or established by The City from time to time. Any rule or regulation es- tablished by The Company shall require approval of the City Manager which shall not be unreasonably with- held. (15) The Company will make every effort to enforce the re- moval of all vessels from the facility upon issuance of Hurricane warnings by the National Hurricane Center. (16) The Company shall enforce the rules and regulations in the Dockage AgLQement as follows: (a) Only vessels in good condition with their own power will be permitted in the berthing area. (b) Barths will be assigned by the dockmaster or his representative and no changes will be made with- out permission. (c) The Company will be responsible for keeping the piers clear of all vehicles, small boats, supplies and storage of'any items except those that can be -13- stored in the locker that any be supplibu with the berth. (d) The Company will limit the number of vessels that can use each berth to one, except that one small boat may also be berthed, provided it is within the limits of the berth, and does not pro - Sect beyond the pilings. • (e) The Company will limit the repair work that may be done at the docks as defined in the City of Miami Agreement. (f) The Company will enforce the rules that pro- hibit the use of charcoal burners, open flame torches and any other open flame producing equipment. (9) The Company shall enforce the present rules on the use of T.V. sets, musical instruments, hailers, radios and other on board equipment that may create a nuisance. (h) The Company shall enforce the rule prohibiting the throwing overboard of any objects, such as gar- bage, trash, human waste, and shall enforce the pro- visions prohibiting swimming, diving or fishing from the piers. (17) The Company contemplates the installation of radio equipment within the Dockmasters Quarters to provide boaters with ship -to -shore communication. In addi- tion, The Company will install closed circuit T.V. scanning to provide better security at the docks and their environs. (19) The Company will initiate a newsletter, either monthly or biweekly, to keep the Dinner Key boaters abreast. of activities, events, and general information con - earning the area. (19) The Company will encourage programs emanating from Dinner Key such as regattas, tours, and entertainment. • -14- • ! C 11 (20) Tho Company will endeavor to establish a relation- ship with other marinas in the area with the in- tent of providing better service for all of the boating public. (21) The Company will endeavor to promote exchange of boat uses between the tenants of Dinner Key Marina and marina tenants in other parts of the country and the world. (22) The City or The Company may, from time to time, request changes in the scope of services to be per- formed hereunder. Such changes which are mutually agreed upon between The City and The Company must be incorporated in written amendments to this Agreement following approval thereof by the City Commission. (Additional services to be provided by The Company are in- cluded in other portions of this Agreement.) • -15- • S. CONSTRUCTION OF NEW FACILITIES The parties hereto agree that The City and The Company shall use their best efforts to expand Dinner Key Marina to pro- vide for approximately 550 slips, 200 moorings and support facilities for the marina, including, but not limited to dock - master's offices, laundry services and restrooms, storage space for maintenance equipment, mail areas, bait i tackle, carry -out ! food facilities, sail boat rental areas, transient facilities and commercial boat facilities and such other facilities as The City deems appropriate. The parties agree to provide the maximum number of slips consistent with the maintenance of a sound environment and sub- ject to approval of all regulatory agencies. It is anticipated that The City shall issue revenue bonds �. of approximately $4,500,000 to provide financing for the marina improvement and expansion. The parties hereto mutually agree that The Company shall select and pay from its own resources the design and engineering team to perform the permitting and preliminary engineering. Said team shall be selected subject to the approval of The City Manager, which approval shall not be unreasonably withheld. f The Company agrees to pay a maximum of $100,000 for pre- liminary engineering and permitting of the marina. Preliminary engineering shall not include working drawings and permitting shall not include the cost of City of Miami permits. Attor- ney's fees, engineering and consultants fees and all other colts and expenses shall be included in the permitting process. • -16- The Florida Consultant's Competitive Negotiations Act * (?.So Sec. 267.055) shall apply to the engagement of all con- sultants who are the subject of said Statute who are compen- sated by City funds (as distinguished from those engaged and compensated by Company). The Company shall participate in the competititva selection process by having a designated representative appointed to the selection committee. During the preparation of engineering plans and specifi- cations, The Company will determine the appropriate layout, support systems, ancillary uses and design and construction criteria, subject to approval by The City Manager. The City shall issue all construction contracts for the facility. The Company shall provide on -site oversight and management of the project and shall notify The City of any problems that arise during construction that will affect the operation, management S and maintenance of the marina. The parties agree that the completed design plans and specifications shall become the property of The City. t 7. CUSTODIAL SERVICE The Company shall furnish all maintenance sup7,lies for housekeeping and shall provide all custodial and janitorial services required to maintain the property in a clean, sanitary and presentable condition. e. CITY'S RIGHT TO EXAMINE PROPERTY The Company shall make available for inspection by City f Manager or his designee all areas of the property under its control, at any time for any purpose the City Manager deems • necessary or incidental to or connected with the performance of The City's duties and obligations hereunder. S. DOCKAGE RATES The Company shall recommend dockage rates and rates for the use of other facilities and services to the City Manager. The following costs, expenses and economic factors shall be considered and included in setting dockage rates, namely: Bond debt service requirements of one hundred fifty percent (150%) coverage -17- • charges, operating expenses, management fees and other costs, all as set forth in paragraph 4 of this Agreement. Dockage rates shall be generally consistent with those charged at other marinas of comparable quality situated on public lands In the Dade County area. in addition to the dockage rate, The Company shall be permitted to require vessel owners to pay for utility service ! which is separately metered. Rules and Regulations: The Company shall recommend to the City Manager any ♦ rules and regulations it deems advisable for the operation, use, repair, maintenance and management of the marina facilities. The City and The Company agrees that such rules and regulations R shall be prescribed and enforced to provide marina services to the general public of the highest quality, with due observance of amenities and astute standards commensurate with the appear- ance and maintenance standards of the surrounding area. The • Company covenants that it will observe and enforce said rules and regulations. 10. CONFORMITY TO THE LAW R :the Company covenants to comply with all laws, ordinances, regulations and order of Federal, State, County and Municipal authorities pertaining to the property and operation thereon. The Company further covenants and agrees that there will a be no discrimination as to race, color, creed, sex or national origin in the use of the property or in the employment of its personnel. Protection of Tax Exemption: The City and The Company covenant and agree that, notwith- standing any other provisions hereof, the marina facilities shall be operated and maintained hereunder at all times as public facilities owned by The City and serving the general public and shall be available on a regular basis for general public use, and that in the operation and maintenance of the -18- marina facilities nothing shall be done by either The City or Company to jeopardise the exemption from Federal income tax of the interest on the bonds (exclusive of bonds held by a sub- stantial user of the marina facilities or a related person, « as defined in the Federal income tax regulation). Any provi- sion in this Management Agreement which jeopardises such tax exemption shall be deemed null and void. 11. PAYMENT OF UTILITIES The Company shall pay for all utilities consumed on the premises and waste collection fees, if any, as an operating expense except as provided in paragraph 9 hereof. 12. WATER TAXI AND TRAM STATIONS In the event The City decides to provide or grant a franchise to provide a Tram or People -Mover system for the R Dinner Key Park area, the parties agree to establish a station and roadway for access for said system on the property, so long as the same does not unreasonably interfere with the operation of The Company under this Agreement. Any costs in adjusting the k site use to accommodate said system shall be borne by The City or its franchisee, as the case may be. In the event The City decides to provide or grant a R franchise for Water -Born Transportation to and from the Dinner fty area to other locations in The City, the parties agree that such free embarking and disembarking facilities for said Water - Born Transportation will be provided. Any costs in adjusting t the site use to accommodate said system shall be borne by The City or its franchisee, as the case may be. Location of said facilities as described above shall be (t mutually agreed upon. 13, HURRICANE AND EMERGENCY The City shall, during any emergency such as hurri- cane, flood, fire or any type of disaster, cooperate with The Company for the security of the premises. The City shall use its best efforts during an emergency to safeguard the said premises. -19- 14. INVENTORY All fixtures, furnishings, furniture, and equipment, if any, in or upon the facility and their condition will be in- ventoried before occupancy by The Company. The Company will maintain fixtures, furnishings, furniture and equipment, if any, in good and operable condition during the term of this Agreement at its own cost and expense, except for those fix - tunes, etc. attached to docks and building to be demolished, and said property shall be deemed in its sole custody and care. In the event that any of the aforementioned items are lost, stolen or damaged, they shall be replaced or repaired at 1t the cost and expense of The Company, ordinary wear and tear excepted, during the term of this Agreement. 15. OWNERSHIP OF IMPROVE►dENTS All improvements, fixtures and equipment constructed or Installed at the facility or purchased with City funds shall be owned by The City. The Company shall have title to all per- sonal property purchased with Company funds which were not in- cluded in the annual operating budget. Upon expiration or termination of this Agreement, title to the property, all perm- anent improvements, fixtures and equipment purchased with The City funds shall be peacefully surrendered and delivered to The R City. Title to all Company equipment shall remain vested with The Company and The Company shall have the right to remove the same from the premises. R 26. DAMAGE OR LOSS TO COMPANY'S PROPERTY The Company assumes all risk.of damage or loss to its property for any cause whatsoever, which shall include, but not be limited to, any damage or loss that may occur to mer- chandise, goods, equipment or other property covered under this Agreement, if lost, damaged or destroyed by fire, theft, rain, water, or leaking of any pipes or waste water in or about the property or from hurricane or from any act of God, or any act of negligence of any user of the facilities or any persons whomsoever. • -20- 27. -In the event the premises shall be destroyed or so damaged or injured by fire, hurricane or any other casualty during the life of this Agreement whereby the property shall be rendered A Incapable of use for its intended purpose, the parties agree to use the insurance proceeds to rebuild the facility. Interest on Insurance proceeds shall be used to pay the bond service require- k ment to the maximum extent possible. 18. INDEMNIFICATION The Company covenants and agrees that it shall indemnify and save harmless The City from and against any and all claims, suits, actions, damages or other causes of action arising dur- ing the term of this Agreement for any personal injury, loss of life or damage to property sustained in or about the property, t by reason of, or as a result of The Company's management thereof, and from and against any orders, judgments or decrees, which may be entered thereon, and from and against all costs, attorney's fees, expenses and liabilities incurred in and about the defense R of any such claim and the investigation thereof; provided, how- ever, that before The Company shall become liable for said cost, The Company shall be given notice in writing that the same are a about'to be incurred and shall have the option itself to make the necessary investigations and employ counsel of The Company's own selection for the necessary defense of any claim. The City t may, at its option, retain its own counsel at its sole cost and expense in addition to the provisions as hereinabove set forth. 19. ADVERTISING The Company agrees to undertake an aggressive advertising t program to inform the public of the availability and services of the marina, and The City agrees to use its best efforts, through its Publicity Department and other Departments, to assist The atCompany in promoting the public use and enhancement of the marina. Further, The Company shall undertake, with the City Parks and Recreation Department, to erect appropriate signs de- signed to assist and direct. the public to the marina and its r services. -21- The Company agrees to work with area s:erchants and busi- Ok nesses to develop an integrated program of auxiliary services, such as hotel accommodations, car rentals, restaurant and laundry services, for marina users. 20. DEFAULT If The Company shall neglect or fail to perform or ob- serve any of the terms, provisions, conditions and covenants herein contained, for a period of thirty (30) days after re- ceipt by The Company of notice of such neglect or failure, or If more than thirty (30) days shall be required because of the nature of such default, if The Company shall fail within thirty k (30) days period to commence and thereafter proceed diligently to cure such default,.or if The Company shall be declared bank- rupt according to law, then and in any of the aforementioned events, The City may lawfully and immediately or at any time E thereafter, without demand and/or notice, enter into and upon the facility or any part thereof and expel The Company and term- inate this Agreement. 0! 21. NOTICES Notices from The City to The Company shall be deemed duly served if mailed by registered or certified mail, postage pre- paid to The Company at 444 Brickell Avenue, Suite 1000, Miami, k Florida 33131, attention: Murray H. Dubbin, General Counsel, and Notices from The Company to The City shall be deemed duly served if mailed by registered or certified mail, postage pre - A paid to the City Manager, City of Miami, P. O. Box 330708, Miami, Florida 33133; or to such other respective persons or addresses as the parties may hereinafter designate to each other, by notice given in the foregoing manner, from time to time. R 22. TIME IS OF THE ESSENCE Time for the occurrence or performance of each and every event herein shall be of the essence unless otherwise indicated. R 23. TAXES The parties agree that the management and operation of the Dinner Key Marina facility and those operations convenient or necessary therefor, are public purposes and, therefore, no • =22- M ! ad valorem taxes should be assessed by the Dade County Tax Appraiser. If, however, taxes are assessed by said property appraiser, the parties agree: A. Assessment upon or against concession properties. In the event that the property tax appraiser assesses taxes upon or against such portion or portions of the lands subject to this Management Agreement as are in the control of concession- acres, or upon which concessionaires are situated, in the per- formance of any concession agreement hereunder, the parties agree that at the request of and at the expense of any such con- cessionaires, the parties may defend against such assessment on R behalf of such concessionaires. The extent of such defense by the parties shall be as reasonably requested by such concession- aires, provided further, however, that at all times the parties have first determined that the said concessionaires requesting such defense or requesting the joinder in such defense, will fully and completely pay the costs and expenses of such defense as may be incurred by the parties or either of them including R court costs and reasonable attorneys' fees incurred by the par- ties or either of them in such defense, and provided, further, that the said concessionaires requesting such a contest of assess- R meat,fully and completely indemnify and save the parties jointly and separately harmless from any and all claims, charges or in- debtedness resulting from the conduct of such defense and con- test in the event the same is not successful. All concession R agreements entered into between The Company and its concession- aires shall through appropriate language incorporate the terms and conditions of this covenant. a B. Assessments against the marina property. In the event taxes are assessed against the property upon which docks, piers, woorings and any other properties devoted to marina use and upon which the marina is located as well as properties upon which R the marina administrative facilities are located, as well as all improvements thereto, are assessed by the property tax appraiser, the parties hereby agree as follows: • 1. Both parties agree to cooperate fully with each -23- other to contest and defend against said assessment. said con- test and defense shall, at the option of the parties or either of them, be conducted at the administrative level, i.e. before the tax appraiser, the tax appraisal adjustment beard or any successor organisation, and before the courts, to such extent and to such level as The Company or The City shall determine. 2. The costs and expenses including reasonable at- torneys' fees which are incurred by the parties as well as such t taxes which have accrued and been paid during the course of the litigation contesting said taxes, shall be included in the oper- ating budget as operating expenses and become a part of those R economic elements going to the makeup of the dockage rates, as more fully referred to in paragraph 9 of this Agreement. 3. If final adjudicatory action, i.e. the final order of the highest tribunal before which the property assess- ment issue has been submitted for determination, administrative or judicial, results in a determination that such assessment is lawful and that the taxes are due and such determination is based upon reasons other than the existence of this Management Agreement, then it is agreed that all real property taxes, county, school board and municipal shall be included in and made a part of the operating budget as operating expenses which shall be included and made a part of the total expenses used to determine dockage rates as set forth in paragraph 9. 4. In the event the final adjudicatory action de- clares the assessment lawful and the taxes to be due and payable, solely due to the existence of this Management Agreement, then it is agreed that the amount of said taxes shall be made a part of the operating budget and shall be deemed operating expenses a Included in the makeup of the dockage rates as set forth in par- agraph 9, unless the effect of such inclusion causes dockage rates to exceed the average rates charged for dockage and moor - Ingo at other marinas situated on public land located in the Coconut Grove area. In such latter event, The Company may pay any amount of tax which causes such excess of the average rate from its profits. If The Company fails to pay such excess, then -24- The City shall terminate this Management Agreement and reim- burse The Company for expenses incurred in accordance with Paragraph 6 - CONSTRUCTION OF NEW FACILITIES. S. The economic effect of such property taxes shall be computed annually and made a part of each semi-annual oper- ating budget with such adjustments as may be required to con- form to the terms of This Agreement. 24. LAWSUITS - RENT STRIKES 4! If and in the event a lawsuit is brought by any party against The Company and/or The City, which in substance arises solely due to the signing of this Agreement, then the parties R agree to mutually defend said lawsuit. If said lawsuit results in a temporary delay of.the projects, this Agreement shall be extended by the amount of time caused by the delay. if and in the event that there is a tenant strike or a R similar strike or refusal to pay rent or lawsuit of any type or nature in which rental payments are placed in any escrow account or in any court fund, The Company shall be relieved of its obli- gation to pay to The City any amount in excess of the monthly bond service requirement until such rent strike or suit is settled and all sums are released to and/or obtained by The Com- pany. This provision shall not permit a reduction in the amount of consideration required to be paid, but only a temporary de- lay of the required payment. 25. INSURANCE The Company shall not commence work on this Management Agreement until it has obtained al% insurance required under this section and such insurance has been approved by The City. The Company shall at all times, during the term of this Agreement, maintain in full force and effect the following de- scribed insurance covering the property and the operation thereon: (a) Public liability insurance of not less than $1,000,000 per occurrence for death or bodily injury and not less than $1,000,000 per occurrence for property damage. (b) Fire and casualty coverage of not less than ninety (90%) of replacement value' of all existing and future improve- O' ments. -25- s sured and shall provide that The City shall be given at least thirty (30) days' advance written notice of cancellation of said policy or any material modifications thereof. t Certificates of insurance shall be filed with the prop- erty and insurance manager of the City of Miami. The insurance provided for herein shall be written by a company authorised to do business in the State of Florida R through an agent authorised to do business in the State of Florida and must be rated at least A as to Management and Class 10 as to Financial according to A.M. Best Key Rating Guide, a latest edition. The Company shall further carry any other insurance rea- sonably required in connection with the proposed operation. 26. FUNDING s The City shall be solely responsible for funding the im- provements described herein. The City agrees to provide funds from revenue bonds in a sufficient amount not to exceed Five It Million Dollars ($5,000,000). 27. CONFLICT OF INTEREST No stockholders, directors or employees of The Company shall have any interest in any business which supplies The Com- pany with goods or services without advice to and consent of the City Manager. It is understood and agreed that The Company's attorneys, Dubbin, Schiff, Berkman i Dubbin, are also stockhold- ers of The Company and that they may, in addition to receiving any profits or dividends declared, be compensated at their reg- ular rates as an operating expense in connection with any of The Company's needs or rights and obligations arising out of or in connection with the provisions of this.Agreament. 28. ATTORNEYS' FEES AND COSTS In the event that it is deemed necessary for either party to file a lawsuit in the appropriate court of law in order to enforce any of the terms and provisions of this Agreement, then the prevailing party shall be entitled to reasonable attorneys' r fees and costs. - 26- 1 tk 29. CAPTIONS The captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the Scope of this Agreement or the intent of any provision hereof. 30. REVISIONS DUE TO BOND ORDINANCE i The parties agree that this Agreement shall be revised to the extent necessary, in the opinion of underwriters for The City, of its revenue bonds, to reflect provisions in the ' bond Ordinance as may be necessary or desirable to make the revenue bonds marketable. In no event shall the provisions respecting the amount of the management fee payable to The Company be changed. 31. ENTIRE AGREEMENT This Agreement contains the entire undo:standing of the parties hereto concerning the subject matter hereof and no modification, release, discharge or waiver of any of the pro- visions hereof shall be of any force and effect unless in writing and signed by both parties. 32. REPRESENTATION BY CITY City warrants and represents that it has full power and authority to enter into this Agreement under the Constitution and laws of the State of Florida and Ordinances and Resolu- tions of Dade County and City of Miami, and that all condi- tions and things required by the Constitution and laws of the State of Florida, Dade County and the City of Miami to happen, exist and be performed precedent to the signing of this Management Agreement have happened, exist and have been performed as so required. -27- 23. NON -ASSIGNABILITY CLAUSE fob This Management Agreement may not be assigned by The Company without prior approval of the City Manager. Any assignment, transfer or conveyance of stock to parties who are not stockholders as of the date of this Agreement shall be deemed an assignment requiring the City Manager's prior approval. An assignment subject to the restriction contained herein shall not include an assignment to the personal representative of a deceased stock- holder or to said stockholder's estate or heir. Provided, however, that a subsequent transfer, assignment or conveyance from the stockholder's estate or heir to a third party who is not a stock- holder as of the date of this Agreement shall require such approval. Also excluded from the operation of the restrictions of this clause shall be assignments, transfers or conveyances between and amongst persons who are stockholders as of the date of this Agreement or members of their immediate family. IN WITNtSS WHEREOF, the parties have hereunto caused these presents to be executed this day of , 19,_, ATTESTS THE CITY OF MIA14I a p ng e, Ciiy-Clerk Josephrasa e, EiFy Manager 4 4 A s6 BISCAYNE RECREATION DEVELOPMENT COMPKNY Robert raugott, Pau.1 S. Walker, President Secretary APPROVED AS TO FORM AND CORRECTNESS: GEORGE F. KNOX, JR. CITY AT NEY, Y OF IVII mu by E I ob tIJ APPENDIX B f 40 r+r n 4F •� , -w a :? 4 4 • EXHI . � f • lot Y KEMARINA R N pRQr'�M ATIO