HomeMy WebLinkAboutItem #17 - Discussion ItemDINNER KEY MANAGEMENT AGREEMENT
SUMMARY 12/12/78
2 TERM
10 YEARS
WITH SEMI-ANNUAL INSPECTIONS FOR PROPER MAINTENANCE
AND OPERATION
1E
NO ADVERSE COMMENTS MADE DURING 1O'YEARS
THEN COMPANY HAS RIGHT TO AN ADDITIONAL
5 YEARS UNDER THIS AGREEMENT
2, USE,
GENERALLY
• SMALL BOAT MARINA & MOORINGS
BOAT RAMP WITH NO CHARGE
• SHOWERS & RESTROOMS
SECURITY SYSTEMS
• CONCESSIONS SUCH AS BAIT & TACKLE, FOOD & BEVERAGES
FOR TAKE-OUT, FUEL, BROKERAGE (WITH 5% LIMITATION),
MARINE HARDWARE, LAUNDRY & OTHERS WITH APPROVAL
• SAILBOAT RENTAL &.CHARTERS
ALLOWANCE FOR FALL BOAT SHOW SPACE
CONSIDERATION
PRIOR TO BOND ISSUE
R� OSS.RECEIPTS
- OPERATING EXPENSES
- MANAGEMENT FEE (1/FT:/DAY FOR DOCK SPACE LEASED)
NET GOES TO CONSTRUCTION RESERVE
AFTER ISSUANCE'OF BONDS (DURING CONSTRUCTION)
GROSS RECEIPTS
- OPERATING EXPENSES
- DEBT SERVICE (INTEREST ONLY)
- 1/2 OF DEBT SERVICE TO CITY (BONDS REQUIRE 1.5 COVERAGE)
- MANAGEMENT FEE (1/FT./DAY + 1/10 OF 1 FOR EACH 1
FINGER PIER RATES EXCEED 12 + 10% OF MOORING REVENUE)
NET IS SHARED 50-50 BETWEEN COMPANY & CITY
UPON COMPLETION
GROSS RECEIPTS
OPERATING EXPENSE (INCLUDES FOR AMOUNT EQUAL TO 1/35 OF-
BOND USED AS A DEPRECIATION & REPLACEMENT RESERVE)
- DEBT SERVICE (1ST PAYMENT ON PRINCIPAL DUE 1/1/83)
- 1/2 OF DEBT SERVICE TO CITY
- MANAGEMENT FEE (SAME AS DURING CONSTRUCTION)
NET IS SHARED 50-50 BETWEEN COMPANY & CITY
ALSO
COMPANY IS ENTITLED TO PROFIT FROM CONCESSIONS BUT:MUST RENT
SPACE FROM CITY AT A RATE EQUAL TO DEBT SERVICE + 1/2 OF:
DEBT SERVICE + 1/35 OF COST OF SPACE ON SPACE SO PROVIDED
ALSO
COMPANY PAYS CITY 1 FOR EACH GALLON OF GASOLINE PUMPED
6 CONSTRUCTION OF NEW FACILITY
EXPECT $4,500,000 REVENUE BOND ISSUE TO PROVIDE 550 SLtPS
+ 200 MOORING & ANCILLARY SUPPORT FACILITIES
COMPANY WILL PAY $100,000 TOWARD COST OF PERMITTING AND
DESIGN DEVELOPMENT DRAWINGS (IF MORE THAN $50,000 IS
REQUIRED ADDITIONAL $50,000 WILL BE ADVANCED FROM BOND
PROCEEDS & REPAID AT $5,000/YEAR + INTEREST)
COMPANY SELECTS DESIGN TEAM SUBJECT TO. CITY MANAGERS APPROVAL
ALL DESIGN WORK SUBJECT TO CITY MANAGER'S APPROVAL
CITY ISSUES CONSTRUCTION CONTRACT
COMPANY SUPERVISES WORK ON BEHALF OF CITY
9,'DOCKAGE RATES
COMPANY RECOMMENDS BASED ON BOND REQUIREMENTS & COMPARABLE --
FACILITIES SUBJECT TO APPROVAL OF CITY MANAGER
20. DEFAULT
COMPANY HAS 30 DAYS TO CORRECT VIOLATIONS
23, TAXES
.L CONCESSION PROPERTIES ARE TAXED CITY OR COMPANY MAY
DEFEND AT CONCESSIONAIRES EXPENSE
IF FACILITY IS TAXED COMPANY AND CITY SHALL DEFEND
IF FACILITY IS FINALLY JUDGED TO BE TAXABLE FOR REASONS
OTHER THAN THE MANAGEMENT AGREEMENT THEN TAXES ARE
SPREAD TO TENANTS
LE FACILITY IS FINALLY JUDGED TO BE TAXABLE BECAUSE OF
THE MANAGEMENT AGREEMENT THEN TAXES ARE SPREAD TO.
TENANTS TO THE EXTENT THE RATES DO NOT EXCEED AVERAGES
IN COCONUT GROVE AREA
IF TAXES CAUSE RATES TO EXCEED AVERAGE THEN COMPANY
PAYS EXCESS OR AGREEMENT IS TERMINATED AND CITY
REIMBURSES COMPANY FOR DESIGN COSTS INCURRED
CITY or 014'iER KEY RECONSTRUCTION PROGRAM
ASSISIPT10NS
Llveaboards
Non-Llveaboards
Sailboats
Commercial Boats
Transient Boats
Moorings
Other
REVENUE ON CASH
FLOW OASIS
Liveaboards
Non-Liveaboards
Sailboats
Commercial Boats
Transient Boats
Moorings
Other (Gas fee,
Space rental, etc.)
Total Dock Revenue
INVESTMENT INCOME
Reserve fund $ 15,300
Renewal A Replacement 6,750
Special Reserve on Hand 22.250
Total Interest . $ 44,300
TOTAL GROSS REVENUES 5922,421
DIS3L,SEMENTS
0 6 tl Expense plus ordi-
nary Expense(1) 5670.712
Net Revenues 251,709
Debt Service not other-
wise provided (2) -0-
riet Income available for 251,709
other contractual pay't.s.
CONTRACTUAL PAYMENTS
10 CITY
50% of Debt Service S 85,312
1/35 of Bond Issue for extra-
ordinary repair & replacement.
(Ordinary RAR is included in
annual operating budget) (3)
Total to City S 85,312
TO I'Nl'.GE R•
TC PFPD Rented Dockage
1/101 PFPD Rentals exc. 12d
10% Mooring Rental'
Total to Manager
SURPLUS FUNDS
(50% ea. City 1. Manager)
FUND BALANCE.. END Or.PFR10D
Construction Fund(4)
Debt Service Reserve
R & R Reserve (t'pre.)
Interest Account
Special R & R
1/1/79 thru 6/30/80
10365' x 114 PFPD
4200' x 6d PFPD
20 x 531 per mo.
15 x $60 per mo.,
550,000 per year
Beg. 1/1/60 @ S40 per mo.
$615,681
136.080
11.160
16,200
75,000
24,000
N.A.
5878,121 '.
-0-
$ 78,651
N.A.
S 2.400
$ 81,051
S 85.346
(S 42.673)
S3,500,000
408.000
-0-
341,250
200,000
7/1/C0 thru 6/30/31
(14565' x 13; PERO)
(20 x $75 per mo.
15 x 5100 per mo.
$72.000 per year
100 x $40 per mo.
(5581,642)
18,000
18,000
72,000
48,000
N.A.
$837,642
$ 30,600
4 3. 500
15.000
$ 59,100
S896,742
5514,432
382,310
-0-
382,310
$170,625
-0-
$170,625
$ 52,434
5,243
4.800
$ 62,477
S149.208
($ 74,604).
7/1/81 thru 6/30/82
(21701' x 134)
(20 x 580 per mo.
15 x 5120 per mo.
5110,000 per year
200 x $50 per mo.
$1,015,607)
19.200
21,600
110,000
120,000
N.A.
$1,286,407
$ 30,600
13.500
15,000
$ 59,100
$1.345,507
$ 572,770
772.737
235,625
537,112
7/1/C2 thru 6/30/83
((21701' x 14C)
20 x 580 per mo.
15 x S120 per mo.
5110,000 per year
200 x 550 per mo.
(51,093,730)
19,200
21.600
110,000
120,000
N.A.
$1,364,530
$ 30,600
13,500
15.000
$ 59.100
S1.423,530
$ 604.272
819,358.
406,375
411,983
$ 203.125 $ 203.187
50,000 ' 100.000
$ 253,125 -$ 303,187
$ 78.124 $ 78,124
7,812 15,624
12.000 12.000
$ 97.936 $ 105,748
$ 186.051 $
(93,025)
3,048
(1.524)
7/1/83 thru 6/30/84
(21701 x 15d)
20 x 580 per mo.
15 x $120 per eo.
S110,000 ocr year
200 x 550 per mo.
121,171,8541
19,200
21,600
110,000
120.000
N.A.
$1,442,654
$ 30,600
13,500
15,000
$ 59,100
S1.501.754
$ 637,507
864,247
'406,125
458,122
$ 203.062
100,000
$ '303.062
$ 78,124
23,437
12.000
$ 113.561
$ 41,499
$ (20.749)
ZIg
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",.
WITNESSETH
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
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"
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
WHEREAS, The Company is both desirous and capable of
construction management, and management & 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
ten (10) years including the time for permitting and construc-
tion. This Agreement shall commence on the
, 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 shall 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.
exercise this right at least sixty (60) days prior to the
expiration of the Agreement.
day of
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c. • Cooperation with Consulting Engineers
The Company shall cooperate with such consulting engineers,
1rar
1.
or other consultants, as may be designated by enginee�s '�
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:
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.
g. Coin operated laundry facilities.
h. Maintenance of landscaping, perimeter walkway and
lighting.
i. Sale of bait, tackle and ice.
j. Sale of marine hardware.
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k. Sale of take-out food and beverages intl4pi ng•-,beeF
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
any equivalent pier, shall be made available to such party as
The City may designate as its contractor for purposes of con-
ducting the annual Boat Show. 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 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 (1) per foot, per day, for dock space leased; next,
io"?
any excess revenues shall be deposited in a construction
reserve account which shall be used to reduce he amount of
any bonds required for reconstruction and expansion"�of, fley�,1
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
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 o f if ty(p0%) percent 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 (1)
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
remaining money from gross receipts shall within sixty (60) day's.
of the end of each fiscal year be divided equally between The
Company and The City.
r
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
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 ($.01) per gallon of - 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
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IV
of the concessions listed below, namely: ten percent (l0%) 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
(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 o.
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 mairtenanco and
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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 except those
revenues attributable to concessions that The Company provides
at 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
amoritzed in equal installments over a period of not less
than twenty-five (25) years. Monthly bond service requirement
is one -twelfth (1/12th) of the bond service requirement.
5. 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 (or
at such other place as may be designated hereafter by The
City), the aforementioned monthly payments. Along with said
MM
MM
•
MM
4r � r � 1 Y �... r '� L s
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.
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 granted
control of the marina facilities and is hereby authorized to
exercise such control as it deems reasonably necessary for the
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orderly, safe, sanitary and secure use of such facilities in
accordance with applicable laws, regulations, ordinances and
rules of �1.:,ti-'
the City. L u �9�
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
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 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.
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The Company shall have the sole control of the manner an6:ik
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 actionsspecifically 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.
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 shallnot
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. Employees may require training.'
(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
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general public for the rental and u. i rfa-cili,
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
eluding the pursuance of all legal remedies avail-
able for such purposes. 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..
(;) The Company shall be responsible for the complete
operation of the Dinner Key
fined and legally. described herein.
(8) The Company will institute management systems, secur-
Marina Complex as d
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
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.
of The City for
(10) During the term hereof, The Company Iwj1.1 maintain
L.` 4 u
and operate the premises and all improvements '' Il i:
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 lease or sublease :ny portion of the marina op-
eration without the prior consent of the City Manager
which shall not be unreasonably withheld. ,
The Company will abide by and enforce all rules
Pules and
regulations now in effect or established by The Com-
pany 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 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
MM
-13-
stored in the locker that may be su$ died with the
berth. L"' 4
(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, providedit 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
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 ley boaters abreast.
of activities, events, and
cerning the area.
(19) The Company will encourage programs emanating from
general information
Dinner Key such as regattas, tours, and entertainment.
con-
-14-
(20) The Company will endeavor to establish a relationr;
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
eluded in other portions of this Agreement.)
-15-
1
1
i
Company are in
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
of approximately $4,500,000 to provide financing
improvement and expansion. The parties hereto mutually agree
revenue bonds
for the marina
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
liminary engineering and permitting of
engineering shall not include working
$100,000 for pre -
the marina. Preliminary
drawings and permitting
shall not include the cost of City of Miami
ney's fees, engineering and consultants fees
costs and expenses shall be included in the
-16-
permits . Attor-
and all other
permitting process.
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-compaen-
sated by City funds (as distinguished from those engaged andC;;01
compensated by Company). The Company 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 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
and maintenance of the marina.
The parties agree that the completed design plans and
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
and presentable condition.
8. CITY'S RIGHT TO EXAMINE PROPERTY
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 purpose the City Manager deems
necessary orincidental 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
clean, sanitary
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 debts service requirements, fifty percent (50%) coverage
-17-
a
1
9
,......,.w�..
'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
regulations and order of Federal, State, County and
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
ordinances,
Municipal
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 beoperated 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 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 nay 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 City
or its franchisee, as the case may be.
In the event The City decides to provide or
franchise for Water -Born Transportation to and from the
Key area to other locations in The City, the parties
such free embarking and disembarking facilities for said Water -
Born Transportation will be provided. Any costs in adjusting
Dinner
agree that.
the site use to accommodate said system shall be borne by
City or its franchisee, as the case may be..
Location of said facilities as described
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-
shall be
14. INVENTORY
r*
k
A11 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 IMPROVEMENTS
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
not in-
sonal property purchased
with Company funds which
eluded 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
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
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,
water, or leaking of any pipes or waste water in or about the
property or from hurricane or from any act of God,
of negligence of any user of the facilities or any persons.
whomsoever.
-20-
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
untenable, the parties agree to use theinsuranceproceeds to
rebuild the facility. Interest on insurance proceeds shall be
used to pay the bond service requirement 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 ofthis 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
The Company shall be given notice in writing that the same
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 d
signed to assist and direct the public to the marina and its
services.
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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) clays 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
rupt according to law, then and in any of the
be declared bank
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
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
and expel The Company and term
served if mailed by registered or certified mail,
postage pre-
paid to the City Manager, City of Miami, P. 0. Bo}: 330708,
Miami, Florida 33133; or to such other respective persons
addresses as the parties may hereinafter designate to each other,
by notice given in the foregoing manner, from 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 Key Marina facility and those operations convenient
or necessary therefor, are public purposes and, therefore, no
-22-
•
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.
the event that the property tax appraiser assesses taxes upon
or against such portion or portions of thesubject 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
as may be incurred by the parties or either of them including.
court costs and reasonable attorneysfees 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 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 lands upon which docks, piers,
moorings and any other properties devoted to marina use
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-
:other to contest and defend against said assessment. '-.Said_tbrI4
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
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
and to
-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':'
5. The economic effect of such property taxes Yti.
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 d
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
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 replaceiiient value of all existing and future improve-
ments.
this
-25-
Said insurance shall name The City as an addit:i6narXarie,
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.
-26-
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
Company be changed.
to The
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
performed as so required.
been
33. NON -ASSIGNABILITY CLAUSEh
.,
This Management Agreement may not be assigned by The Comti'a y,4
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 day of , 19
ATTEST: THE CITY OF MIAMI
Ralph Ongie, City Clerk Joseph Grassie, City Manager
BISCAYNE RECREATION DEVELOPMENT
COMPANY
Robert M. Traugott,
Secretary
Paul S. Walker, President
APPROVED AS TO FORM AND CORRECTNESS:
GEORGE F. KNOX, JR.
CITY ATTORNEY, CITY OF MIAMI
By:
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