CAO 01-13 Shane Watersports
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CITY OF l\tllAMI BEACH
CITY A TTO&."ffiY'S OFFICE
Jorge M. Gonzalez
City Manager
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Murray H. Dubbip \ i :'AL IJ.;~)
City Attorney ! ~\~, 1\ ,~\.,
Raul J. Aguil~ C1 f) \--
First Assistant CitY'-A'uirne~~'
DA TE: September 17, 2001
TO:
CAO NO. 01-13
FROM:
CMO NO. 1-8/01
SUBJECT: Shane Watersports Center
The following memorandum is prepared in response to your memorandum, dated June 4, 2001,
regarding the Shane Watersports Center. The questions raised therein are answered in order as
follows:
1. The existing term of the Amended and Restated Lease Agreement, dated
November 20,1991, between the City and Miami Beach Water Sports, Inc. (as
successor in interest to lVIiami Beach Jewish Community Center), for
construction and operation of the rowing facility at 65th Street and Indian
Creek Drive, known as the "Shane Water Sports Center" (SWC), expires on
May 21, 2011, and provides for an option to renew for one additional term of
ten (10) years. SWC, as "Lessee", would like to exercise its renewal option at
this time. Can SWC exercise such .extension option and reflect same in the
Amended and Restated Lease?
Paragraph 23 of the Amended and Restated Lease Agreement (the Agreement)
provides that, if the Lease is not otherwise in default, it shall be renewable at the
option of "Lessee" (SWC) for one additional term of ten (10) years, upon the same
terms and conditions, except where otherwise provided in the Lease. As the language
in Paragraph 23 reads, the option shall be exercised by the "Lessor" (in this case, the
City), giving Lessee notice in writing, at least 60 days prior to the expiration of the
initial term.
Thus, there is an express conflict in the language of Paragraph 23. Where the first
part of the sentence provides that if the "Lease is not otherwise in default this Lease
shall be renewable at the option of Lessee", the concluding portion of the sentence
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provides that the "Lessor" must give "Lessee" notice in writing (presumably of the
option to renew) at least 60 days prior to the expiration of the initial term. In the
entire content of the instrument, it appears that the above interchange of
"Lessee/Lessor" results from typographical error. Assuming that the use of the word
"Lessor" where the word "Lessee" should have been was a typographical error, then
Paragraph 23 would make sense, and the language would be consistent with the
intent of the paragraph, making the option to renew at "Lessee's" discretion, if
exercised in writing at least 60 days prior to the expiration of the initial term. The
instrument does not pr9hibit exercise at this time.
For purposes of answering the remaining questions submitted in your memorandum,
this response shall assume arguendo that the option to renew is exercisable at
Lessee's di screti on.
2. As part of a City-approved planned renovation improvement project, SWC is
requesting to formalize its current use of the land adjacent to the property,
fronting Indian Creek Drive, for a new boat storage area. Does Article 6,
(Sections 6.01 through 6.04) of the Miami-Dade County Charter apply?
As set forth in your memorandum, in July 2000, the Mayor and City Commission
allocated $300,000 in General Funds to finance renovations and improvements at the
SWC. As part of this planned renovationlimprovement project, the SWC is
requesting to formalize its ex.isting use of the land adjacent to the property, fronting
Indian Creek Drive, for a new boat storage area. The area in question is currently, and
has for the past ten years, been used for boat storage with a tent cover, but is not part
of the leased premises under the Agreement. The proposed renovation project
includes construction of a concrete block structure to replace the current tent cover
on the boat storage portion oLthe land. Accordingly, SWC is requesting that the
Agreement be amended to incorporate this additional area and reference the proposed
renovation.
Additionally, in your memorandum you state that the Administration has determined
that the additional area is not waterfront property, and that an extension to the current
term (including renewal option) of the Agreement has not been requested by SWC
at this time. Your memorandum specifically requests a determination as to whether
Article 6 of the Miami -Dade County Charter (more commonly known as the "Save
Our Parks Ordinance") applies to the lease of the adjacent property. The following
subsections not only answer that question, but also address other pertinent provisions
in the City Charter and City Code which may also need to be addressed:
A. Article 6 of the Miami-Dade Countv Charter
Pursuant to discussions with the City's Planning and Zoning Director,
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Jorge Gomez, both the leased premises and the additional area are
classified as Government Use property and, additionally. are
designated as Parking (P) in the Comprehensive Plan. Accordingly,
as Anicle 6 of the Miami-Dade County Charter applies only to parks,
the provisions of Article 6 do not apply.
B. Section l.03lb) of the \tliami Beach Citv Charter
Section l.03~b) of the Miami Beach City Charter, entitled
"Alienability of Property," provides that the sale, exchange,
conveyance or lease of five (5) years or longer (including options) of
park, recreation, or waterfront property in the City of Miami Beach,
while it is being used for such public purposes, must be approved by
a majority vote of the voters in a City-wide referendum. Again, as
the subject property is zoned G.D. (and designated as Parking in the
Comprehensi ve Plan), it is not classified as park or recreation;
therefore, this portion of the City Charter provision does not apply.
Additionally, as the Administration has made a factual determination
that this is not waterfront property, the remaining limitation in the
City Charter provision does not apply.
C. Ordinance No. 92-2783 (The "Shapiro Ordinance")
The "Shapiro Ordinance" establishes requirements for the sale or
lease of City property. However, as stated in your memorandum, as
an extension to the existing Agreement term is not being requested at
this time (over and above the renewal term already provided in the
Agreement), this provision would not apply to the land subject of the
existing Base Agreement However, at such time as the Lease is
amended whereby the adjacent property parcel becomes committed
to a new encumbrance (the Lease), in our opinion, the provisions of
Ordinance No. 92-2783 would apply to that parcel.
Further, as noted in your memorandum, the SWC would like to
reserve its rights to entertain, in the near future, an extension to the
Agreement, beyond the existing term and renewal option provided for
therein. At that time, this Office would recommend that a separate
request for legal opinion be directed to it, outlining the details of said
proposal.
3. Does Section 142-423 of the City Code apply to the proposed renovation and
improvement project?
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We note in your memorandum that the facility is currently programmed as a
watersports center and rowing facility, and that the future use will remain the same.
Additionally, you state that the proposed renovation and improvements (i.e. the
construction of the concrete block structure for the new boat storage area on the
additional property) are referenced in the description of Improvements contained in
the original Agreement. Accordingly, we have reviewed Exhibit "C " of the
Agreement, containing the Improvements contemplated at the time of the approval
and execution of the Agreement in 1991. In reviewing those Improvements it is
unclear whether the proposed renovations (i.e. the construction of the new boat
storage area) are incorporated. I am unclear as to why you would infer that they
were incorporated in the original Agreement, as they are currently contemplated on
the additional property, which was not part of the leased premises in the original
Agreement. Additionally, Paragraph 7 of the Agreement, entitled "Construction of
Improvements," states that notwithstanding the City's (Lessor's) consent to the plans
incorporated in Exhibit "C", said approval is subject to SWC's (Lessee's) compliance
with all City of Miami Beach and other governmental approvals required for issuance
of a building permit (see Paragraph 7 (a), page 3 of the Agreement). Therefore, since
the proposed renovations are to be constructed on the additional property that was not
originally included in the Agreement and which, in effect, is the subject of a
proposed amendment to the Agreement, I would conclude that any proposed use on
the additional property must receive Planning Board review pursuant to Section 142-
423 of the City Code. Additionally, although not the subject of inquiry in your
memorandum, the Administration should consult with the City's Planning and
Zoning Director as to the applicability of other provisions in Chapter 142, Article II,
Division 9 of the City Code, relative to properties in the G.V. Government Use
district.
Should you have any questions or comments, please do not hesitate to contact me.
MHD:lm
cc: Mayor Neisen Kasdin
Christina M. Cuervo, Assistant City Manager
Joe Darnien, Asset M,mager
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