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HomeMy WebLinkAboutM-79-0409CiTY OF tflAMi. t,oRiDA INTER -OF 1C MEMORANDUM '°` Joseph R. Grassie t, City Manager " FROM: R. L. Fosmoen Assistant City Manager :�tJfJIF.G't: May 30, 1979 FILE: Watson Island Development -REFF.RENCCS, 1- NCLOSUREC: On May 8, 1979 the City received a letter from its bond counsel, Bryant, Miller, Olive, requesting instructions from the City as to the procedure they should follow in attempting to reach a final determination on the tax exempt status of the proposed revenue bonds for Watson Island. That letter was forwarded to the City Commission on May 24, 1979,and indicated that the current agreement did not allow tax exempt status for the Watson Island Project. The attorneys provided us a basic outline of conditions they felt would be appropriate in order for them to issue an opinion that the Watson Island bonds are indeed tax exempt. We have proceeded to negotiate an amended agreement with Diplomat World Enterprises which tracks those guidelines as provided by Bond Counsel. A copy of that revised agreement is attached for the Commission's review and approval. This revised agreement was negotiated in the presence of and with the participation �g A) of the City's bond counsel, the underwriters and their counsel, and Diplomat Wori•d Enterprises. The basic changes of the previous agreement are as follows: 1. Services by DWE are now viewed in two stages; first DWE will function as the City's developer for the project and will receive a developer fee in the amount of 5/ of the construction costs of the project. Secondly, upon completion of construction, DWE will function as .the operator of the project for the City for a term limited to five years with the option that the contract can be cancelled without cause at the end of each year. For this operating service, DWE will re- ceive a fixed fee equivalent to the projected return as provided for in the ori- ginal agreement. The fixed fee represents $12M over the term of the contract. 2. All Watson Island project employees will be employees of the City. 3. Any future agreement beyond five years must be negotiated at an arm's length basis. There is no presumption that the terms of this agreement would carry into additional or subsequent operating agreements. 4. The amendment provides that should IRS rules permit the original agreement prior to the date of construction completion that we will revert to the original agreement. J Also enclosed you will find an agreement between the City and the underwriters, Prescott, Ba11, Turben and Blythe Eastman Dillon & Company, Inc. As you know, the City has applied for a UDAG grant in the amount of $10M from the Department of Housing and Urban Development for Watson Island. HUD requires as a precedent to consideration and approval of this grant a commitment from the underwriters that they will purchase and/or place $55 M in revenue bonds. The attached agree- ment between the City and the underwriters constitutes a commitment on the part of the underwriters to meet this UDAG requirement. It also commits the City to use the above underwriters in the placement of $55M of revenue bonds upon approval of the UDAG grant. Fees to the underwriters would be paid from bond proceeds and are contingent upon sale of bonds. Also enclosed is a resolution for Commission consideration which re -states the intent of the City to issue $55M in revenue bonds. The Department of HUD has re- quested that this be included in our submission package for the UDAG application. Further, you will find a proposed agreement between the City and Economics Research Associates that provides for an update of their economic feasibility study, the most recent version of which is dated April, 1978, and for the preparation of a pro- (8 0) cedures manual which will spell out in detail the responsibilities and obligations of both the City and DWE in the developmental and operational phases. It is anticipated that this procedures manual will be a binding agreement between the City and DWE, and will be entered into and agreed upon prior to bond sale. It is our opinion that such a document is necessary given the magnitude and complexity of this project. The fee for the above service to be provided by ERA is $23,000, plus reimbursable expenses, to be paid from the Watson Island project account. The above actions are necessary on the part of the City Commission in order to qualify the City for consideration of the UDAG grant. The deadline for submission of the above materials to HUD is no later than June 15, 1979. The UDAG grant is necessary in order to meetthe inflationary costs which have accrued to the project as a result of delays of IRS in providing the City an advanced ruling of tax exempt status as contemplated by the original contract. (8 B) (8 C) IIIIIIIII IIIIIIIIIIIIII IIIII II IIIIIIIIIUIIIII11 IIIIIIIIumIII■umiumi C. FARRIS BRYANT WILTON R. MILLER W. ROBERT OLIVE, JR, HUGH M. TAVLOR Mr. Joseph R. City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 LAW OFFICES BRYANT, MILLER AND OLIVE /00 BARNETT BANK BUILDING TALLIAHASKEN, Ft.oltum 9:hot (9041 222•86( 1 Grassie May 18, 1979 City Manager Re: Watson. Island Project Dear Mr. Grassie: Pursuant.. to the Power of Attorney vested in this " firm by the City dated March 29, 1978, we filed with the Internal Revenue Service a request for an advance ruling to determine if the provision of the contract, between the City and Diplomat World Enterprises (DWE) as manager' of the Project would affect the tax status of the interest in the hands of the holders of bonds proposed to be issued by the City under terms of the contract. Accordingly, we requested and were granted an Internal Revenue Service (IRS), staff conference at which we were advised informally that the subject of "management contracts" is a matter recently undertaken by the IRS staff for technical studyand that current ;'tentative guidelines are to the effect that management contracts (i):must be terminable annually, (ii) must be based on a flat fee as opposed to a percentage of revenues derived under termsof such an agreement, and (iii) must be based on arms length negotiations. • Since the current tentative guidelines are contrary and dLametrl- cally opposed to the private ruling received by the Inter -American Center Authority ("Interama") on nearly the same factual circum- stances in the early part of 1974, we requested a conference with the Director of the Individual Tax Division under whose .auspices this ruling request rests. Accordingly, wemet with the Director, to amplify and orally present the basis of the request and to explain why the WatsonIslandproject should be distinguished from current general guideline policies particularlyin light of the Interaaa" ruling. The Director acknowledged the, position of the IRS in the Interama ruling but stated the IRS had subsequently changed its unpublished position as to the general treatment treatment of management contracts as a.categorial subject irrespective of :the Interama ruling. i Mr. Joseph R. Grassie May 18, 1979 Page Two Contemporaneously with our efforts, Congress enacted the* Revenue Act of 1978 which provides, in part, that the IRS must act on advance ruling requests made subsequent to January 1, 1979 within six months after the filing of a request and in the event this does not happen or the ruling is negative, the taxpayer may apply to the Tax Court for a declaratory judgment. To come within the purview of the Act the request must be filed on or after January 1, 1979, without provisions for grandfathering pending requests. The IRS on December 21, 1978, announced Revenue Procedure 79-4 changing the minimal filing requirements for advance private rulings, which published ruling requires matters not required when we filed our request on behalf of the City. Because we could not merely withdraw and refile our request subsequent to January 1979 under Revenue Procedure 79-41 we withdrew the ruling request without prejudice to avoid the possibility of an adverse or delayed ruling, without the right of judicial review provided in the Revenue Act of 1978. On consideration by the various law firms involved in this matter, it is their consensus that the IRS, irrespective of the prior ruling in the Interama financing, will not change in the near future their current tentative guidelines as set forth above relating to management contracts and the City's ruling request if re -submitted under the present contractual terms would result in a negative response. Based on the foregoing, we respectfully advise the City that if it desires to immediately proceed with the issuance of non-taxable Revenue Bonds it must modify its contract with DWE to conform with the guidelines set forth herein, which is permissible under Section 41 of the contract which provides: "Section 41. The parties agree to make any reasonable modifications to this Agreement which will not materially adversely affect • either of them, if requested so to do by any underwriter of the Financing, any lender, CITY's bond approving counsel, or CITY's independent auditor." If this course is followed by conforming the contract to the aforementioned general tax policies of the United States, which we request be done pursuant to the provisions of Section 41, the financing could conceivably be completed by the latter part of September 1979. .•. Mr. Joseph R. Grassie May 18, 1979 Page Three To facilitate an understanding of the parties as to permissible perimeters of certain of the terms of a management agreement in keeping with the herein stated tax policies, we offer the following general guidelines: 1. An initial contract term, commencing on the date of completion of the project, of five (5) years is permissible if terminable without cause at the option of the City at .the end of each anniversary date of the contract. 2. The management fee or contractual consideration for operation of the project must be based on a fixed fee schedule as opposed to a varying = amount based on a percentage of revenues derived from operation of the project. 3. The contract must be negotiated at armslength without any interlocking relationship between the managing entities, or their off icers`or their employees. 4. Renewals of the management contract - between the .parties are permissible if renegotiated without any predetermined conditions or terms. 5. Except as to, executive employees of the '_manager, employees of licensed vendors and lessees, persons employed to operate the project should be employees of the City. 6. The parties may engage in a separate and independent agreement for management andsupervision during the development and construction phase of the project under any;.`. terms and conditions mutually agreeable. There are three other possible alternatives which are, set forth below but which will continuethe adverse inflationary impact upon the project and do not offer any assurance of ultimate success: 1. Refile the request with the existing contract terns, with certain reasonable expectation that the IRS would not rule within six months or would rule adversely, whichif pursued would lead to protracted and uncertain litigation in the United States Tax Courts, 2. Seek a special act of Congress providingfor the tax exempt status of Bonds financing the Watson •Island Project. We would anticipate IRS opposition to ,such legislation and more than a year of effort before, passage or not could occur. Mr. Joseph R. Grassie May :18, 1979 Page Four 3. Seek general legislation in Congress changing Section:..103 of the Internal Revenue Code'of 1954,.asamended. Also, we would anticipate IRS opposition to such legislation and more than a year of effort before passage or not could occur. We appreciate your attention to this matter and respectfully request instruction as to.which course to follow. Sincerely, WRO/mjs. cc: Mr. George F. Knox, Jr., City of Miami 17 East Flagler Street Miami, Florida 33131 Mr. John Gilchrist, Project Director. City of Miami 150 S.E. 2nd Avenue Miami, Florida.33131 obert 0 City Attorney Mr. Ronald L. Fine, General, Partner Diplomat World Enterprises, Ltd. 1212 City National Bank Building Miami, Florida 33131 Mr. Donald Chadwick,Partner Prescott, Ball & Turben 900 National City Bank Building Cleveland, Ohio 44114 OIN C. FARRIS BRYANT WILTON R. MILLER W R03ERT OLIVE, JR, LAUGH M. TAYLOR LAW OFFICES BHYANT, MILLER AND OLIVE 700 BARNETT HANK BUILDING TALIAANA8MI.i , $LUNIDA 32301 (904) 222'80 1 May 23, 1979 Mr. Joseph R. Grassie, City Manager City of Miami City Hall, 3500 Pan American Drive Miami,.Florida 33133 Re: Watson Island Project • Dear Mr. Grassier In regard tothe captioned matter, we offer the following as amplification of this firms letter of May 18, 1979 concerning those provisions of the letter relating to management compensation for fees during the operational phase of the Project. Management fees may be statedinterms of annual accrued earnings payable over a period of years without regard totermination if based on a fixed amount. If you have any questions concerning the letter of May 18, 1979, or this supplemental letter thereto, please contact the undersigned. WROjr/mjs cc: Mr. George F. Knox, Jr., City Attorney City of Miami 17 East Flagler Street Miami, Florida 33131 Mr. John Gilchrist, Project Director City of Miami 150 S.E. 2nd Avenue Miami, Florida 33131 Mr. Ronald L. Fine, General Partner Diplomat World Enterprises, Ltd. 1212 City National Bank Building Miami,: Florida 33131 Mr. Donald Chadwick, Partner Prescott, Ball & Turben 900 National City Bank Building. Cleveland, Ohio 44114 C. rAHa1S tl4VANT , WILTON h ASILLt: l W RO$H19T OLIVE, JP, HUDN N TAYLON LAW O%:ICES I nvAN'r, MIL.LEIt AND OLIVE 700 B44NETT DANK BUILDING T,\l.tl.\11.\41.EC, 14,(114 MA 32391 190/1 222 0511 Mr. Joseph R. Grassie, City Manager City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Re: Watson Island .Project Dear. Mr. Grassie: We have reviewed the form of the Amendment to the Agreement dated November 11, 1977 between Diplomat World Enterprises, Ltd. and the City of Miamisubmitted to us this date. It is our present opinion that the Amendment to Agreement meets the Guidelines setforth in this firm's letter of May 18, 1979 as amended and presents, a basic document, assuming the adoption of satisfactory bond documents and upon entry of a judgment validating the bonds, on which our opinion may be rendered to this effect that the interest on the bonds issued to finance the project contemplated by the Amendment is exempt from Federal taxation under present statutes, regulations and rulings. M.-Robe WRO/mm