HomeMy WebLinkAboutItem #06 - Discussion Item_;7v OF MIA`-lI. .�:1210,1,
I!!'! i;•C_;i'' 1Ci= -A ri AOU 1
Joseph R. Grassie
City Manager
FRo;t Richard L. Fosmoen. v
Assistant City Manager
J/1N 2 2 1980
Biscayne Recreation;
Management Agreement
•arit:LO:iUPE
On 'Friday, 4' January 18, 1980 - the final . copy of the`; Biscayne
Recreation Management Agreement was forwarded to the City
Commission for consideration.. The Agreement. is basically
the same as" presented, in Novemberwith several minor modifi-
cations.as pointed out to:the commission -;in November.
The` attached resolution adopts the Agreement as presented and,
provides 'for"an"effective date to be'coincident with the
implementation of-necessary"changes:to the. City Ordinance:
covering: rates,etc. at City"marinas." Also attached are copies"
of responses to questionsraised by. Commissioner Plummer and by
Mr Senatore and a";report from: the :Human = Resources Department's'.
on the layof f impact of the Management Agreement
It isrecommended that the Commission adopt the attached Resolution
entering into a Management Agreement with Biscayne Recreation for
Dinner Key. Marina.
NOTE;:;.
January 9 19.80
Mr. Ernie Senatore
President
Miami Marinas Association``.
3400 `:Pan °American Drive
'Miami, Florida 33133
Dear
Mr Senatore:
The following is in response to your letter of Decernber
requesting certain information concerning the management`
at Dinner Key.
3,. 197.9
agreement
. Transient Boats
While transient boats are not specifically identified in
the contract, the Manager, recommends rates to the City, Manager.
who will approve such rate recommendations The revenues.
received ,fromtransient boats will become part of the total
revenues from Dinner Key and will be considered as part of
the overall operation of the marina
• The Five Percent Allocation of Marina Slips for. Brokerage Boats
Again, while no specific rates are identified in the contract,
the Manager recommends rates to the City Manager who approves
such rates. The contract does provide for a return to the
City for concession operations whether they are managed
directly by the Company or under a contract with the Company.
Themanagement agreement provides that no brokerage` slips
will:; be issued until all of the existing dockage has been
rebuilt.
. _ `The Live Aboard Issue
The Company is required to prepare and recommend rules for
the operation of Dinner Key and the live aboard issue will
be addressed in the rule making procedure.<
Mr'. ErnieSenatore
Page. 2
January 9, ;1980
xisting
Tenant Leases;`
Current leases will
remain in effect
▪ Stockholders of the Conipany
Attached is a listprovided. by Biscayne Recreation of't
stockholders in the Company.
▪ Procedures`_ for Concessionaires'
The contract provides that the Company has an option,of
providing concessions or entering into agreements with
concessionaires In the event that the Company chooses
not to provide one of the concessions listed, the City at
its option, can proceed to seek`. proposals for concessions"
and directly operate such concessions. The one exception
is sailboatrentals which will be put outfor public bid.
Conflict f 'Interest
There is a conflict of interest section is
covered under Paragraph 27.
• Compensation. for. Boat 'Shows;
the contrac
The City already has entered into contractual arrangements?
for two boat shows 'during the year..i :These contractual
arrangements -will be honored.
9. Communication
Path;
Any member of the public has access'directly ;to -.the City
Commission, the Waterfront Board or 'the:'City Manager at any`
10. The Method' for Setting Rates
The management firm will recommend' rates to the CiLy-°.[•lanacer:.
At such time as a bond indenture is adopted by the City
Commission for reconstruction of Dinner Key, inall likelihood
that indenture will require ultimate approval by the City
Commission Chapter. 50 of the City Code will . require. amencl-
ment'in order to adjust rates in accordance with the;: provisions
of the management contract.
Mr. Ernie.Senat.ore
Page 3.
January. 9, 198O
Provisionfor Current City Employees
• Many ofthe employees at Dinner Key have Civil Service rights
within the_ system.and'will be provided jobs elsewhere in;the
City. .The .Company has indicated a willingness to interview
all`employees.,at Dinner Key for possible employment.. Several
employees at. Dinner Key do not have tenure in other jobs Iri
:this".case, the.City:will make every effort to.find them employ-•
ment elsewhere.within the City system.
12. iThe,:Bond Issue =;
If bonds are not issued for the ,..reconstruction ,of -Dinner :KEY,
the management agreement would continue with the Manager being
paid' on a per foot, ° per day basis. The bond ordinance has not
been drafted. The management agreement provides for adjustment
to meet any provisions that may be incorporated in the bond
ordinance
13 Revenue;Return`
Since :'the City ultimately "approves the rates, it'wiell control
the°return tothe, Company above the -management :fee
.•
4. Performance Guidelines
The entire contract is a performance standard and :the. City
can terminate the c. contrat ifany 'prov
isions isions are
violated.
15. Auditing
The City .has an internal audit. staff" which .norma•lly audits
the -.records of companies, providing management services . or°
having .leases ' wi th the City .
I II NIP II II immisi. '.--
If there is'any additional information -you desire, please do notilesitate
to contact. Inc. I have .also; attached my responses "to the questions` raised
at the;Novernber Ci y Commission Meeting as well, 'as my response to
questions' raised . by Commissioner Plummer.
Sincere
Richard L. Fosmoen
Assistant City Manager
• ••• 1•
Mr. Joseph ft. Grassie
City Manager
Vice Mayor J.
I 1t
November 23, 1979:
Dinner. Key, Marina -Management
Agreement
r.
•
'
• Page 1 c
As per agreement, I submit the following for consideration before final action
is taken on this contract.
All references Tnade below are from the rough :draft .dated ,11-29-79
1.- The agreement of the Commission.was ",for . a 4year contract with an
additional 4 years optionalAs strongly-recommended`in.your :memo,
I- question the change without the change of the Commission policy,
WHY? . .
No reference. is made' for allocation of:,space with'
city ;resident
(the owners of ;'the property having.,, priority)
No 'reference is, . -.
- made 'in `any titiav to talc nerceiitage;if any, relating
`- to. live- aboards..-1.
No reference is made.; to the status off present -City employees.
No guarantee is given by the leasee to produce 550' slips and
200 moorings._,
I. find no minimum guarantee by the lcasec to, the . City to:cov•er• : the
bond: p tv a nt's. f'or'ex:unple, through :ni.smanu!;cment;: the m:trina1. i.s:I at., `
fu11 and revenues me not adequate to cover the cost l'ilcrc, should.
'be - a ini.nimlim: return equivalent to cover the cost the bend,.-.'
In '.reference section G, 117, pa e i , it is my reel int; 'to :what'`''extent .;.bo•at
repairs . can be made at the marina. Same section,'item 9,:should : read
"subject to City Commission approval .".
l'• age 1111., 1tcm ti, turns professional and technical:services. No -mention'
is T made at who 's expense:
:Page 1t12, item 9, should contain the word ing:"the company should act ati
manager •(at no . iee)" •
Page .013 "item` 14 shou ld'read ::"the: company w i 1.1 abide, by" and `:enEorcc
al1.rules and re;;ulnt.ions, L.C. E'ede`r;i1 rcgulatiuris: rel;iLing,to-,pollution,:,•
Page 2
Page tt 14, tem 17, change .the wording from 'contemplating," which means'
nothing, to "must."
Page .#26,"item.26, the'amount`of funds, 5,million"dollarS,.is in conflict,.
-with the improvements of dollars.
Page #26, item 27,is very` weak and needs to parallel the: conflict of
'statute referred to in the charter.
interests
for the word "City �1ar.aRe`r."•
F.inall✓ h. find ..it ;totally. ridiculous that`` no Plan;. is..'submitted or attached
to-this.agreement ;:in ,rclation to`'S million dollars works of improvement
•
binding the: �.;r '
lc .sec
Joseph R. Grassie
City Manager
Qot;, Richard L..'Fosmoen
Assistant City Manager
Commissioner Plummer's.
Questions Concerning the
Dinner Key Marina Management
Agreement
Following is a response to questions raised by Commissioner
in his memorandum ;'dated November 28, 1979.
Year `Contract ;'With a Four Year Option
Plummer
'This issue was discussed at some length during ',the- negotiations
with Biscayne Recreation. Biscayne"s position. was. that they
will be. managing the facility during'„ reconstruction,..the most
difficult time to manage the facility, ,Reconstruction based
on ,a phased program will take three to -four -yearsto accomplish,
plus an additional year for permitting and bonding."'Therefore,
Biscayne will be managing the facility during a five year.
period of reconstruction and will have an additional five
years to enjoy management of a completely reconstructed
facility. The contract also provides that Biscayne must
receive generally positive reviews during this period in
order for the five year option at the end of ten years to
take place.
Space;: for City Residents.
It was felt that this issue would
the rules making procedure, which
the City Manager.
Live Aboard
be " best .handled through:
must be approved by
Again, it was felt' that the rules making procedure would best
handle this question.
City': Employees
A number of employees at Dinner Key have "bump rights" within
the system. ," Biscayne, has indicated a willingness and desire
to retain 'certain employees. Those employees who do not have.
"bump rights" within. the system will be assisted by the City
in securing employment' either within or outside of the City
system.
Mr. Joseph R: Gra Jie .;
tions.
11. Pace 14,':Item 17
The Companyhas
shall install.
December 20, 1979
• Number of Slips and Number of . Moorings
The City will controlthe development :process- The numbers
are based on proposals. which were made" .when Dinner Key was
initially put out for leaseand; the Company has .provided
preliminary plans which would incorporate 550 slips and
200 moorings.
• Minimum''.Guarantee`
Since the: City ultimately is responsible for setting' the
rates . and also approves " the annual budget 'of the :management;
company, it will;be the City!:s-responsibility`.to insure ari
adequate return to cover the band:.costs:" If.. -the
"marina is._::
not full becauseof`poor management,_ this would"be'a basis
for terminating the management agreement..:
Section G,Number 7, Page 7
The. Company has"stated that it is their intention to.:allow,;
minimum boat"maintenance and repair. The extent to -which
boat maintenance' and repair is permitted"at 'the,docks..wll,
be covered in the rules making procedure. If..the:.Commission
would prefer to make decisions such as "that coveredby Item;° 9 ,
the contract :could be changed at the Commissi,on?s, direction'::
However,: -the, Manager is normally responsible 'for the:da`v=to-dav
administration of.contracts.such as this.
▪ Page 11, Item: G
Prof`ssional and technical services which.are: required:for._
';the.. operation of" the marina will be included in the annual
operating budget`which is approved by.,the City'; Commission.
▪ Page 12, Item 9
Since. -no: fee ismentioned for the: Company;`actinq as the manager
during reconstruction, it is implicit; -that;. no compensation
beyond that :p rovicied for in the Con trac t- - w it l be : provided .
• Page 1', Item 14
Section 10. of .the contract which is on page ,18`,requires the
Company to comply With all laws of all governmental jurisdic.
agreed to change the word contemplates to
• n •O IAI f hiIUl1
The $5 million mentioned. was viewed as an upset price in the
issuance of bonds, the.$4.5 million 2iure was an estimate
that the Company provided in their bidding forethe services
at : Dinner Key.
13. Page 26, Item 27
It may be possiblto. str"engthenthe conf:ict of'interest.e l
provisions,however, the,.Company-is alsorequired to abide .
by all laws' of. :the.City, County and the State and if a conflict
of interest arises, it is ;a. criminal"offense
Again, the normal procedure is for the City Manager to"
administer -'contracts such as this on - a day-to-day bas'is . -:
Absence of a Development Plan
The. Company submitted preliminary plans when, they were
awarded the original bid. TheCompanyis required tosperd
$100,000 for development of plans and obtaining permits and
the,,, of course, are hesitant to make that investment prior
to the award of a management contract. In addition, detailed -
plans and specifications can be included as part of the bond
cost once the preliminary plans and permits have been obtained.
I'have also attached copies of my response to Ernie Senatore's letter
of December 13 and responses to questions raised at the Public:!!earing
on the management agreement before the City Commission, in November.
James Sprague `.
All other stockholders percentages not shown. range "from,
3% to..10/.in holdings:,
TO Richard>L. Fosmoen January 16, 1980 t
Assistant City1Manager
Personnel -Effects
Marina Operations
"if
Robert D. Krause, Director ��h%"
Department of"Human`Resources
on Contracting
I am attaching a:memo andreport prepared by. Josephine Argudin
of. our staff`: The report includes one list , indicating the per-
sonnel•effects of contracting out the Dinner. Key Marina; a
second, list indicating the effectsofcontracting out Miamarina;
and a summary page showing the combined efffects of contracting
out ; bothmarinas.
These reports should be considered as tentative When a final
decision is made it will be necessary for us to review the :lists
to see if personnel changes have occurred between today's date
andthe date' the layoffs would become effective.
It may be helpful for you to know that the term "direct" layoff
is, used to mean layoffof employees who would have no; other roll-
back or:transfer 'rights; "indirect" layoff is used to cover those
cases in which a marina employee would have rollback or transfer
rights to another position, resulting in the layoff of an employee
who was not originally employed in the marina.
Please note that contracting' out both marinas would result in the
layoff of seven employees who were originally placed in the special
fundwhen the Commission adopted the budget on October,'17. These
are employees that we have succeeded in placing in other City posi-
ions, in accord with Commission policy.
Please call me if you have any other questions.
January 16, 1980::
Human Resources Tentative Personnel Effects of
Proposed Transfer of -Marinas -to Private
Operation
Josephine Argudi
`Personnel Offic
Classification and Pay Section
Department of Human Resources
e_ftl.N%E5:
Given,a proposed transfer of City Marinas to private operation,
the attached personnel effects could take place These results
are tentative since the exact date of;the transferand-.the ,num-
.ber. of vacancies that may beavailable are not known. It
should be noted. that a number of, employees affected bythe�chain
of,roll-backs resulting :in.lay-offs are.. special fund employees,
recently placed in or -in the' process,of .transfering to' available
vacancies::
DINNER KEY MARINA PERSONNEL EFFECTS
MARINAS MANAGER'.
Hector G. Gal Retired.
TYPIST CLERK II
Lucille Weber Retired.
ASSISTANT DOCKMASTER
Clifford Buckles_- Scheduled for lay-off.
Fred Lee Durant Scheduled for lay-off.
William S. Adkins - To roll -back to Laborer I position to lay-off
Livingston Sauvagere (special fund employee).
James Moss - To roll -back to Custodian I position to lay-off
Aristides Vazquez (special fund employee)
ACCOUNT ° CLERK
Silvia
Burak - To transfer -to an Account Clerk position'to' lay-off
Angela. Garcia.
TYPIST CLERK''I'2
available.
Ira L. McGhee - Couldbe transferred to T.C. II position
DOCKMASTER
R. Marchetti - To roll -back to Stock Clerk 11 position to lay-off
Hilda Coronel.
LABORER I;`
Hector Acabeo - To transfer to Laborer.I position, -to lay-o
Geronino Gonzalez " (special fund employee) .
CUSTODIAN ,I
Joseph Town - To transfer to Custodian I position, tb lay-off
Eulogio Rey (special'fund employee):
Wilhemina Dupree- To transfer to Custodian I"position, t
'Jose Almeida (special ;fund employee).
WATCHMAN
Robert Hess -`Scheduled for lay-off
Thomas Birch - To transfer to Watchman position,
Cantalow (special fund employee)-..
:Willie "C. Anglin - Scheduled .for, lav-off."
o lay-off
lay-off Walter G.
1•
.1,•• •, ..••
DINNER KEY MARINA PERSONNEL EFFECTS
(CONTINUATION)
Total Retirements:
irotal Lay -Offs: 12 direct - 8 indirect)
Total Roll-I:lacIts: 3
• Total Transfers:
Total number of special fund employees affected: 6
• Original nuinber of Civil Service positions in, Dinner Key Marirla: 14
(13 filled and 1 vacant - 2 retirements were not counted).
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1
/'N
CITY OF MIAMI COMMISSION.
FROM: MIAMI MARINAS 'ASSOCIATION
DINNER KEY MANAGEMENT AGREEMENT`
/l
THE _ .
FOLLOWING DOCUMENT' CONTAINS A LIST OF THE REQUESTED':
MODIFICATIONS TO THE BISCAYNE RECREATION DEVELOPMENT COMPANY
AND` THE CITY OF.MIAMI MANAGEMENT AGREEMENT FOR DINNER KEY MARINA.
THE MAJOR IMPACT THESE RECOMMENDED CHANGES HAVE ON THE BASIC
AGREEMENT IS TO PROVIDE THE CONCERNED PUBLIC WITH AN AVENUE OF
COMMUNICATIONS TO THE ELECTED OFFICIALS, THE CITY OF MIAMI COMMISSION,
IN THE SPECIFIC AREAS OF RULE AND REGULATION APPROVAL,: CONCERNING THE
MARINA. ALL MINOR MATTERS OF ADMINISTRATION<OF THE DAY TO DAY
OPERATION OF THE MARINA ARE LEFT TO THE PURVIEW OF THE CITY MANAGER.
AN?ADDITIONAL ITEM FOR CHANGE IS PROPOSED, THAT IS THAT THE COMPANY
SHALL OPEN TO BIDS THE VARIOUS SERVICES TO BE PROVIDED FOR IN THE
MANAGEMENT AGREEMENT, WITH THE COMPANY STILL ACTING AS THE AGENT
FOR THE CITY.
PAGE
.PAGE 6, PARAGRAPH G.
WHICH READ
TO READ
DELETED
SUMMARY OF CHANGES
"THE COMPANY SHALL BE ENTITLED TO OPERATE ANY
,CONCESSIONS OR TO ENTER INTO PERCENTAGE AGREE
MENTS"WITH CONCESSIONAIRES TO PROVIDE THE SERVICE
SET FORTH HEREAFTER."
"THE'COMPANYSHALL BE ENTITLED TO BID, ALONG WITH OTHER
'BIDDERS, ON THE OPERATION OF ANY CONCESSION TO PROVIDE`
THE SERVICES SET FORTH HEREAFTER."
"THE COMPANY WILL PAY THE CITY... OPERATED BY THE
COMPANYAT DINNER KEY MARINA."
ADDED "THE SUCCESSFUL BIDDER WILL PAY THE CITY AT LEAST
PAGE 7,PARAGRAPH G.
AS A BASE -TEN ,(10)'PERCENT OF GROSS REVENUES EARNEt
FROM`. THE CONCESSION:
SUBPARAGRAPH 1
• WHICH READS "IN THE EVENT THE COMPANY CHOOSES NOT TO PROVIDE
ANY OF THE ABOVE SERVICES, THE CITY`MAY NEGOTIATE'A DIRECT
CONCESSION FOR THESE SERVICES."
DELETED THE ENTIRE SUBPARAGRAPH.
PAGE 9,`PARAGRAPH-C
WHICH READS "CERTAIN RIGHTS, DUTIES AND RESPONSIBILITIES OF
THE COMPANY. AS PRESCRIBED OR AUTHORIZED BY THE CITY.
"AS'PRESCRIBED OR AUTHORIZED BY THE CITY COMMISSION."
TO READ
/T\
PAGE 2
SUMMARY OF CHANGES CON'T
PAGE 13, PARAGRAPH (14)
WHICH READS "ANY RULE; OR REGULATION ESTABLISHED BY THE COMPANY
SHALL REQUIRE APPROVAL OF THE CITY MANAGER WHICH
SHALL NOT BE UNREASONABLY WITHHELD."
TO READ "ANY RULE OR REGULATION ESTABLISHED BY THE COMPANY
PAGE'17, PARAGRAPH 9.
WHICH READS
TO READ
SHALL
..
"
REQUIRE APPROVAL BY THE CITY COMMISSION.
AND -SERVICES TO THE CITY MANAGER."
AND SERVICES TO THE CITY MANAGER FOR SUBSEQUENT `.
APPROVAL BY THE CITY COMMISSION."
PAGE 18,; PARAGRAPH 1.
WHICHREADS"..'. VESSEL OWNERS TO PAY FOR UTILITY SERVICE
WHICH IS SEPARATELY METERED"
TO READ "TO EACH, BOAT SLIP."
PAGE 18, PARAGRAPH 2.
WHICH READS "... SHALL RECOMMEND TO CITY MANAGER"
TO READ "FOR SEBSEQUENT APPROVAL BY THE CITY COMMISSION."
A
SUMMARY OF. CHANGES .CON 'T PAGE'
PAGE 19, PARAGRAPH ONE.
WHICH READS ANY " PROVISION IN THIS MANAGEMENT AGREEMENT WHICH JEOPARDIZES
SUCH TAX EXEMPTION SHALL BE DEEMED. NULL AND VOID.
NEW WORDING "ANY PROVISION (S)`IN THIS MANAGEMENT AGREEMENT, OR
THIS MANAGEMENT AGREEMENT ITSELF, 1!' IT SHOULD
JEOPARDIZE SUCH. TAX EXEMPTION, SHALL BE DEE)D
NULL AND VOID."
PAGE:124 PARAGRAPH FOUR
WHICH READS "IN THE EVENT
NEW WORDING "IN THE EVENT THE FINAL.,ADJUDICATORY ACTION DECLARES. THE
ASSESSMENT LAWFUL AND THE TAXES TO BE DUE AND PAYABLE,
SOLEY TO THE EXISTENCE OF THIS MANAGEMENT AGREEMENT, THEN
IT IS AGREED THAT THIS MANAGEMENT AGREEMENT SHALL BE
TERMINATED."
PAGE 26, PARAGRAPH 27.
WHICH READS "NO STOCIcHOLDERS, DIRECTORS OR EMPLOYEES
NEW WORDING "NO STOCIQ OLDERS, DIRECTORS OR EMPLOYEES OF THE COMPANY
OR THEIR RELATIVES SHALL HAVE ANY INTEREST IN THE BUSINESS
WHICH SUPPLIES THE COMPANY WITH GOODS OR SERVICES.":
r.
coconut grove civic club
po box 381 coconut grove florida 33133
24 January 1980
Dear Mayor Ferree
The Coconut Grove Civic Club would like to go on recor
as continuingour opposition:qi' the Biscayne, Recreation
Management agreement.
lAtii/so
Sincerely,
Our
Tucker bbs
President
Coconut Grove Civic Club
•
MANAGEMENT AGREEMENT
THIS: ,AGREEMENT: made and entcred into this .:.. day;o
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",
I, TN: E'S' S E T H e
WHEREAS, The. City currently owns and operates the.
property and facility commonly known as the Dinner Key
Marina; and.
WHEREZ\S, The City Commissiondesires to have private
initiative :and enterprise reconstruct and redevelop the
Dinner KeyMarina: site. . .
` into a first class operating marina;
and
WHEREAS The City has advertised
for Public Proposals
for the lease and operation of the Dinner Key Marina; and
WHEREAS, The Company: along with several other proposers
made pubiic proposals in accordance with the "bidding
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.witha long .term::.
possession contract, and
WIIEREAS, The City has rejected
all proposals for,.
long-term lease and operation of Dinner Key Marina;
arid
WHEREAS, The City Commission directed _:the. Manager
negotiate a short-term. management contract
Recreation Development Company; and.
t
with Biscayne,'
WHEREAS, The Company is both desirous and capable :of
construction management, and management & operationof the
.facilities at said marina • and
WI-IEREAS, The City and The Company have negotiated this
Agreement,
NOW TIIERErORE, . for and in consideration of the premises
and the mutual covenants hereinafter contained
and performed, ,:.the parties .hereto agree as .follows: .::.
DESCRIPTION -OF PREMISES'.
observed
The parbies hereby agree that an accurate description
ofthe 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 c
ten (10) ` years including the time for permitting and construe
tion. This Agreement shall commence on the day:of
-19 7
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 operati:on.'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
facilities. The Company. -shall be
tia:l right and option to renew
thegroundsand
entitled to its preferen.
ifits ratings., have been
generally satisfactory ,for the initial
term
The Company shall. give The City notice of
exercise this right. at least,
expiration of the Agreement.
of. this Agreemen
its intent.: to
si::ty, (60) days prior to the
-2-
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 o
the marina facilities andreporting their findings as to
whether such facilities have been maintained in good repair,
working order and condition, and Lheir 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
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.
b. A boat ramp facility, which shall be open to the
public and for which nocharge shall be made.,
wer and restroom facilities for use by those
persons docking and mooring boats.
• Closed circuit T.V.,:security system for the docks..:
Security` system for moorings:
▪ Sailboat,charter boat and cornmercial boat rentals.
g .,- Coin operated laundry facilities:
I. Maintenance of landscaping, perimeter walkwayand
lighting.
i. Sale of bait, tackle and ice.
Sale of marine hardware.
k. Sale of take-out food and beverages including bee
1. Sale of fuel..
m.' Launch services_
for moored boats.
Boat sales and boat brokerage, provided, however,
that a maximum of .five percent, (5%) of the .totral
number of slips shall be used for such purposes.
. " All other related services "in. accordance .with City.'`
f Miami Zoning Ordinance andsubject to the approval,
f the City „Manager, which shall not be","unreasonably
withheld.
The Company further agrees that during each year:of the
terms of .this 'Agreement and anyextensions:" thereof, "Pier5,
any equivalent pier, shall be made' available to such partf 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-
ment Areement, The City and The Company covenantand agree that
the obligations, duties and responsibilities of each of the,: par
ties imposed under this Management Agreement shall be. subject:
the applicable provisions of the ordinance. ("Bond Ordinance"
autherizing'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 a
follows:
Upon execution of this Management Agreement, The City.
pay from the gross receipts, as herein defined, its
shall
Monthly . oper-
ating e-:nenses; next,' The City shall pay ;The Company: one
cent (l)
per day, for, dock space leased;
-4_
next, _
any excess revenues shall be deposited in a construction
reserve account which shall be used to reduce -the
amount
any bonds required for reconstruction and .expansion of'the
marina facility-.
1n-"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 :(500)
percent to a-construction"reserve.fund for major repairs and-
. renovation . and fifty (50 0) percent to The City.The City
shall not
be obligated or liable to The ° Company for any such ,
failure or inability to"obtain ,constitction permits or to
sell suchrevenue bonds."
C. Consideration -After:Permitting or -Receipt of Bond
Proceeds
Upon receipt of all permits necessary for reconstruc-
tion and expansion of the marina'
bond proceeds issued for reconstruction and expansion,'
whichever Comes first The .City shall first pay from .gross.
receipts the monthly operating e.:penses based' upon monthly'
deposit the'
requisitions from The
balance of'the .money in the Revenue Fund to the credit o
facility or upon receipt.o
Company. The City shall.
the various funds and accounts astablished under. the Bond
Ordinance. Said funds nd accourits shall. provide to The City
a sum equal to one hundred :ifi: (150%)percent of''the Bond Service:.
requirement for the Marina Facility ;'except. -for concession
The City shall pay to:The ,Company ,on a':monthly.'
e in the surplus fund` a fee of one cent (1)
improvements.
basis from money
per foot, per day, for dock space leased; and ten
(1.0";) of gross' revenues produced by, moorings;
perc"en
and at' such'
time as the finger pier dockage rate exceeds twelve
(124)
cents"`.
per foot, per day, The City shall pay.. to The Cornnany, an
additional
clay, for each; one cent (10
rate e::coeds twclvc cenL•s . (12) per foot, per 'day. All
one -tenth
of one cent'a/nth:, of 1' )
per foot, 'per '
that the finger pier dockage,
remaining money from gross receipts shall within sixty (6,0) 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
the City through issuance of a certificate of occupancy.
E. Handling of Revenues
The Company agree that all revenues and other income of
the marina facilities, including collections ofrates, rents,
fees and charges . and all other income derived or arising from
or in connection with the operation, repair, ma
intenance 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, plusan
additional sum on an annual basis equal to 1/35th (one thirty-
fifth) of the cost of construction of, such space provided for
said concessionimprovements for depreciation, replacement` and
repair. Payment of the aforesaid sums shall begin after .the
completion of said construction. Finally, The Company shall
0.01) •;per gallon of .duel sold at
pay to The . City one, cent g
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.:
by
of the concessions listed below, namely: ten percent
(lo%)
The Company's gross revenues earned from concessions contracted
:to third party. Concessionaires; orten percent 0.0%) of The,.
Companys. net profit, -but not less `than five percent (5%) of :The
revenues' -earned from 1 concessions
Company's
gross
operated
by The Compaiiy at 'Dinner I ey Marina:. The cervices referredi t
herein are:
(1) Security systems for moorings`
(2)`. Coin-operated.'1aundry facihitie5:
(3) Sail of bait, -tackle- and ice
(4) Sale of marine hardware-
p ,' off the premises, of, food.
(5) Sale .for consum don
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 leaseafter`.construc
tion exceeds the lineal footage currently available
(9;) Other services subject to the City Manager's
approval
the event The' Company chooses not to provide a
y
the above services, The City may negotiate a direct concession
forthese services;.
II.
efinitions
Operating expenses -.shall be defined as salaries • paid `,t
the doc}master, assistant dockmaster, dockworkers, bookkeeper;
receptionist, secretaries,
providing direct service
other employee benefits;
expenses; miscellaneous
and waste removal;
typists
and other employees.
to tenants; social security and
legal expenses; auditing; office
supplies and equipment; utilities
insurance; : ordinary maintenance and
-7-
repair;_ and :advertisingand promotion. (Further.,- annual
operating. expenses shall include a depreciation reserve and.
re lacement"amount eq
ual qualto 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 Companythrough its annual, operating.budget.)
-The term "gross sales" as used herein shall beconsidered
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 usecl in this Agreement shall
mean the :amount in any. fiscal year which would be necessary
`for y. the sum The City to a .p of the arnount to be deposited iris;
the interest account and the amount to be deposited in` the
.account:on its revenue bonds if
:'all bonds
:principals "were
amoritzed.'in equal instalments over a:period of notless
than twenty-five (25) years. Monthly'; bond service requiremen
is one -twelfth : (1/12th) of the bond service requirement.
5. MAN11GEMENT 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 thereafterduringthe effective period
office of (he Department of Finance of The
hereof, :at the
City, ; or at such
other_, place as may be designated hereafter by
The City
the aforementioned monthly .payments. Alongwith said
payment, The Company shall `provide an operating statement
certificate form signed by a duly authorized
in
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 receip
and .expenditure °of moneyand the maintenance andoperation of
marina facilities and shall prepare all appropriate operating
and `financial reports and' statements: necessary or appropriate
ppropriate
under this Management Agreement.
c: 'Certain Rights., Duties and
Responsibilities;
f The
Company
The Company and The City agree that The Company shal
P
o crate,; maintain, repair and manage the marina facilities for
The City as an inciependent contractor in accordance with this..
Manageinefl 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 faci_lities,.and shall -maintain such'.
facilities in a neat and orderly fashion consistent with such
high
courteous
to
manage
the marina facilities
exercise such ,management power
as it: deems reasonably, ;recCIssary for
orderly, safe, sanitaryand "secure ,use of such facilities in;
Y
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 conformitywith 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
the :Bond, Ordinance and the budget.'
Current expenses. and expenditures of money, the
Renewal and Replacement.Fund,shall not exceed the reasonable
and necessary atOunttherefort provided that in the event o
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.
Company as Manager
This Management., Agreement
establishes The Company'
as the manager and operator of the subject facility, and and
person dealing with The Company shall have the right.to
fully .:on; its power and authority.to bind the: facility with
regard to the .useand occupancy thereof, excepting however-,,`
'The Company hail not have the authority to encumber realfor.
personal property .except as provided in this Agreement. The
par,ties,hereto intend that The Company shall be an independent_
contr-ac Lor, and :the employees: and agents of Tl e . Company, shall:
attain no rights or benefits under:the Civil Service:or':Pension
Ordinances of The C-ity, nor' -the rights :generally afforded :class
ified or.unclassified employees of The City, nor shall The
Company orits employees be entitled to Florida Workmen's
Compensation benefits as employees of
The'City..
The Company ha11 have the sole control of the manner and
means of performing this agreement subject
ing with the terms of this Agreement The
full power and authority to take
efficient operation of
class marina,
the
except..for
to The Company
Company Shall;
all actions
marina and
comply:-
have. the
to bring about. an
to maintain
it as a first
actions specifically prohibited in this
exclusive
Agreement. The Company- hall have the,
and'"discharge.all of its employees"necessary,for
a marina facility and . to fix their compensation " and privileges.
g. Professional and Technical Services
The Company may employtechnicians and consultants to"
tin' and other professional er techni
authority.
the operation
provide.such .legal, .accoun g„
cal.services as The Company deems advisable for the proper
tenance:and_ operation of the _Marina 'Facilities, subject -
budget for the thencurrent fiscal year.
h. Additional Responsibilities
to hire
of
main".
the
, The: Company : shall,
For consideration provided inParagraph.4.
as a`:"minimum::
(1) Provide The;. City. with an estirnate of required
ing expenses for the forthcoming 'fiscal
approval by the City Manager
be unreasonably withheld.
(2) Maintain books and records in sufficient detail to meet
Said books andre
operat-
year` subject to
acceptable accounting
which approval shall
practices.
no
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
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
the marina ,facilities, including, but -not limited to
the 'collection, of all sums due from Tenants and the
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general public for . the rental and use. of facili..
ties, including, but not limited to slip rentals,
mooning.` f.ees",. 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 colle.ct.unpaid
;obligations;. and enforce all handlord's rights,' in-
,
eluding"the'pursuance of 'all legal remedies avail
able. for such purposes subject
City Charter. The'City
the prov±sions of the
agrees that. the responsibility
of The Company herein provided shall he pursued
in' the
name and on bchalfof The City:
(6) The Company shall furnish an adequate 'fidelity .bond
in :theamount of not less .than rifty:Thousand:Dol
(7;)
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.
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 the 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 consL-ruction and
renovation will complywith all -Bovernmental:. rules
and regulation.
(10) hereof, The "Company will maintain
premises and all improvements
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
During the term
and operate the
thereon, in
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 .Lnreasonably`.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 Agreement as follows:
(a) Only vessels in good condition with their own
power wil:L be permitted in the berthing.: area.
(b) Berths :Will be assigned- by the dockmaster or
his .,representative and nochanges will be made with-
out permission.
(c) ,; . The Company will ; be responsible for keeping ; the
piersclear of all vehicles, small boats, supplies
and storage of any items except those that can: be
-13-
stored in the locker that may be supplied 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
be;done at the docks as defined in the City of
-Agreement.,
limit the repair work that ° may
Miami
(f) The Company will enforce the rules that pro-
hibit"the use ofcharcoalburners, 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; musicalinstruments, hailers,
radios and other` on board equipment that may create a
nuisance,.
(h) The Company shall enforce the rule._ prohibiting
thethrowing overboarcl 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 coininunication"
n addi-
tion,., The Company will install closed circuit T.
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.
(20). The Company will endeavor to establish a
ship with other marinasin the area with
tent of providing better service for all
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.
relation
the in
of the
22) The City or The Company may, from .time ro time,
request changes in the scope of services to be per-
formed: hereunder. Such changes which aremutually..
agreed upon between The City and The Company must
`be. •incorporated in written amendments
Agreement following approval thereof by-
Commission.'
this
the City
(Additional services to be provided by The Company are In-
cluded in other portions of this Agreement.)
_l5-
CONSTRUCTION -OF NEW FACILITIES
The parties hereto agree that The City and The Company
shalluse their best efforts to expand Dinner Key Marina :to...pro-
vide for approximately 550 slips, .200-moorings and support
facilities for the marina, incl.udinq, 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.
Theparties -agree to'.provide ,;the •maximum :number of slips
consisLent.with the maintenance of:.a sound environment'
Menu and sib-
ject:to:approval ofall regulatory agencies::
It is anticipated that The City shall issue revenue bonds'_..
approximately.$4,500,000 to Provide financing for the marina.
improvement : and, expansion. The panties heretomutually 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
liminary engineering and permitti
engineering
shall not include
maximum of $100,000 for pre- >.
ng of the marina. Preliminary
working draw•w.ingsand permitting.
shall riot include the cost of City,of Mi
ney's fees, engineering and ;consultants .
costs and expensos shall be included
ami pczmits . Attor-
fees and all other
in the permitting process.
The FloridaConsultant'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; distinquicthed from those engaged and
compensated:by Company);. The, Cornpany .shall participate in
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 willdetermine the.appropr.iate 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 ofthe',.
project and shall notify The City of any problems` that
during construction that will affect the operation, management`
and maintenance of the marina.
arise
The parties agree that thecompleteddesign plans a
specifications shall become the property af 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.
f3 CI Y S RIGHT' TO :EXAMINE PROPERTY
�, � � P.OPERTY
,The Company shall make available for inspection by
-City
Manager or his designee 'all areas of the property under its
control,•at,any time for any.puroose the City Manager deems
necessary or incidental to. or. connected with the: performance
of The City' duties.,and: ob igati.onS hereunder
9. DOCKAGE RATES:
the
be c
The Company shall recommend dockage rates and rates for.
use of- other facilities and.`services to. the' -City; Manager. .`,
The following costs, expenses and economic factors shall
onsiclercd andincluded :in. setting dockage rates, namely.:
Bond' debt s service requirements,
fifty peccent (50%) ; coverage
' '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
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 advisabl.e for -the operation, use,
repair, maintenance and ma.nagement of the marina facilities.
The City and The Company agrees that such rules and regulations
shall be prescribed and enforcedto 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,.
regulatiens- 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
personn1.11.
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
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 person,
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
e\pense except as pzovided 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, r so long;
as thesame does :not unreasonably interfere with the operation
of The Company under this Agreement. Any costs in adjusting the
site use to :accommodatesaid system shall be borne by The City
or its franchisee,. as the case may be.
In the event The City decides to provide orgrant a
franchise for Water -Born Transportation to andfrom the Dinner
Kev area to other locations. in The City, the parties agree that.
such free embarking and disembarking facilities for said Water
Dorn 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. HHURRICANE AND EMERGENCY'
The City shall,, during any emergency such as hurri
cane,, flood, fire or any type ofdisaster, cooperate with -The
Company for.the securityof the premises The City shall use its-
best efforts during an emergency to safeguard .the said premises.„
-19
14.. INVJ NTORY
All, fixtures; furnishings,, furniture, and equipment; if
any,: in or upon -the facility and: their condition will be in.
vontoried before: occupancy by The Company. The Company Will
maintain fixtures, furnishings, furniture and equipment, :if:
,nny,in good and operable co.nditi.en during the term'.of this
Agreement at its own cost ,and expense, except for. those -fist:
tures, .etc. ' attached to docks and htii:iding to be demolished,_`
and said property shall be deemed in its sole custody and
care. In.the event._ that any.:of thee-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 IMPROVEMENTS
All improvements fixtures and equipment constructed "a
installed at the facility or
°purchased with City fuiids shall
e owned by The City. The Company shall have title to all per
sonal property purchased with, Company funds which were not in
eluded in the annual operatingbudget. Upon expiration or
'termination .of this Agreement; title to the property, all perm-
anent improvements; fixtures and equipment purchased with The
City funds shall bepeacefully 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 COMPINY' S"' PROPERTY
The Company assumes all .risk of damage or . loss to` 'its
property for any cause whatsoever, which shall include, but
not .he limited to, any damage or. loss that may occur to mer
chandisc, goods
, , equipmcnt 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
,ihomsoevcr .
any user of the "facilities or any persons.
:17 DESTRUCTION
In the event the premises shall bedestroyecl or sodamaged
or injured by fire, hurricane pi any other casualty during the
Life of this Agreement yhcreby .the property shall bc- rendered
incapable ofuse for its intended purpose, the parties
the in
surance:proceeds;to rebuild the.faciiity.
insurance proceeds shall be used to
pay the
bond
agree
Interest on
o use
service require-
ment- to the maximuM extent -possible.
1£3... 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 ofaction 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:!:
fees, expenses and liabilities incurred in and aboutthe defense
of; any such claim an& the investigation thereoff 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-
thenecessary 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 costand
expense in addition to the provisions as hereinabove set forth.
2.19. 'ADVERTISING.
The Company agrees, to undertake an aggressive 'advertising.
Program. to'inform the public of the avai..lability`and•serviceso
the marina,
and The City' agrees to
use its best efforts, through'`
its Publicity Department and other Departments,
Company in promoting the public use
to assist The
and enhancements Hof, ,the --
marina. I'ur ther, The Company shall -undertake
Parks and Recreation Department; to erect
signed to as 9is t and direct the nubl. is to
services.
with the City
appropriate signs . d�
the marina and its
-21-
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 :Lo 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 II Dubbin, General Counsel,
and Notices from The. Company. to The City shall, be deemed duly
served if mailed by registered or certified email, postage Pre-
paid to the City Manager, .City of Miami, P. 0. Box 3307.08,
other respective persons
Miami,, Florida. .33133 or to. such of i
addresses as the parties may hereinafter
designate to .each othe•r, .:
from time.'t
time.
.by notice given in the foregoing manner., o
22 . TIME IS OP TII1 ESSENCE
NCE
'rime for the occurrence or performance of each and every
otherwise indicated.
event herein shall be of the essence unless
23. TAXES
The parties agree that the management and operation of
the Dinner i:ny Marina facility ." and those operations convenient
or necessary therefor, are public purposes and, therefore, no
!!1
-.---ad•• valorem taxes hou1d-be:'-aSsesSed by the Dada County •Tax-.•
Appraiser. If, however, taxes •are assessed by said property
appraiser, the parti.es 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 su ject
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 concessiona.ires, provided further, however, that at all times the parties
have first determined that the said concessionaires requesting
such defense or t-equesting 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
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-
ment fully and. completely indemnify and save the paes jointly
and separatelyharmless from any and all Claims, chargesor in-
debtedness resulting from the conduct pf 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 propertyIn the event
taxes are assessed against the property upon which (leeks, 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 faciliti.es 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
to contest .and defend
against said assessment.
con --
test • and defense shall; at the option of the parties `or.`either
.
of them, be conducted at. the adminis€rative level,
.e.
before
the tax appraiser, the tax appraisal adjustment board.. or any
successororganization and before the courts', to such extent
and to such level as The Company or The City: shall :determine:.'
2. Thecosts and expenses including reasonable at-
torneys fees which are incurred by the parLiesas well a such.
taxeswhich have accrued and been paid during thecourse of the.
litigation contesting'said taxes, shall be iriclucled in the oper
ating budget as operating expenses and become. a part. of,those
'economic elements- going to themakeup. of the dockage rates, :as
more fully
referred to in paragraph 9 of this Agreement.
final adjudicatory action, 1: e the final :
order of the highest tribunal .before which .the property .,assess
ment.issue:has been submitted '.for .`:determination ,"administrative
orjudicial; 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 andmade 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 forthin:paragraph _9.- :
n the event the final adjudicatory action de
clares the assessment lawful and the taxes to be clue 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 h 9, unless the effect of such inclusioncauses dockage
� p c'au
rates-to exceed: the' average. rates 'chargedfor'dockage and moor.-
ings at other marinas situated on; public :ianct' iocaLced in the
Coconut Grove area . in such latter event, 'l'lio Company may'pay
any amount of tax which causes
such
excess 0 C trho avcu:a g
rate
from its profits. If. The Company fails to pay ;<<ct1 C<rc.'ss, then
-24-
11,
The City shall terminate this Management Agreement and rein-
-
burse The Company for expenses incurred in ciccordance with.
• Paragraph 6 - CONSTRUCTION OP NEW FAciLiTins.
5. 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 bc 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 subst:ance 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 ti.rne caused by the delay. •
If and in the event that there is a tenant st.rike or a
similar strike or refusal to pay rent or lawsuit of any type or
nature in ‘ahich rental payments are placed in any escrow account
or in any court fund, The Company shall be relieved of its obli-
gation Hte 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 full force and effect the following-de7
_
scribed insurance covering the property and the operation thereon::
.• • , „ ,". - .
" less (a) Public Public liability insurance of not less than $1,-,000;.000
per occurrence for death or bodily injuryand not.
$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-
ments. •
Said -'insurance .shall name The City as an additional in-
sured and: shall provide that The. City shallbe 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 manacjer 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 .Fi
- Financial according ao 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
provements described herein:. The City agrees to provide
funds
from revenue bonds in a sufficient amount not to exceed
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 and consent of the
City Manager. It is understood and agreed that The Company'
attorneys, : Dubbin, Schiff, Berkman & Dubbin,' are also stockhol
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 deeined necessary for either. party
a lawsuit in the appropriate, court of law in order to.
. any of the terms and provisions of this Agreement, then
to file
enforce
the prevailing party:shall
be entitled be reasonable attorne"s'
fees and costs.
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 theprovisions..
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 for.ce 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 Stateof Florida and Ordinances and Resolu-
tions of Dade County and City of Miami, and that all condi-
tions and things required
ruirecl by the Constitution and laws of
the State of Florida, Dade County and the City of Miamito
happen,
exist and beperformed
this Management Agreement have
performed as so required.
precedent to the"si
r.gning of
happened, exist " and, have been.`
-27-
NONASSIGNABILITY="CLAUSIJ.
This. Management Agreement rnay:not
bee-assiggned by .The'Company
without prior approval of the City Manager. Any assignment,
trarisfer or conveyance. of stock to parties who are
as of the date of this Agreemeflt. shall be deemed
not"stockholders
an assignment
requiririg the City Manager prior,approval - An assignment.
subject to the restriction contained herein shall
assignment to the personal representative
not 'include an
of: -.a deceased stock-
holder or to said stockholder's estate or heir.
Provided, - however,
that a subsequent transfer, ass_ignment:'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 restrictioflS of this
shall be . assignments, : transfers or conveyances between
persons who are stockholders: as of the date of this; Agreement or
clause
members of their immediate family.
and .amongst
IN WITNESS WHEREOF, the parties have hereunto caused these;,
presentsto be executed this day.. of , 19
ATTEST:
Ralph Ongie,
City, Clerk.:
TIIE CITY. OF MIAMI
Joseph Grassie, City Manager.
BISCAYNE" RECREATION DEVELOPMENT.
COMPANY "
Robert.M.. Traugott", Paul S. walker ," President
Secretary
APPROVED
AS TO FORM -AND CORRECTNESS:-
GEORGE F. KNOX,.JR.
CITY ATTORNEY, .CITYOF MIAMI ;
B