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Lincoln Place Lease Follow-up 11-10-14J\1\LL\M! BE City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov OFFICE OF BUDGET AND PERFORMANCE IMPROVEMENT, Internal Audit Tel: 305-673-7020, Fax: 305-673-7519 TO: VIA: FROM: DATE: AUDIT: PERIOD: INTERNAL AUDIT REPORT Jimmy L. Morales, City Manager John Woodruff, Budget and Performance Improvement Director @ James J. Sutter, Internal Audito~JC-- November 10, 2014 (<'.r Lincoln Place Lease Payments Follow-up Audit January 1, 2013 to December 31, 2013 This report follows up on our previous Lincoln Place lease payments audit report issued on April 15, 2014 covering January 1, 2009 through December 31, 2012 which calculated that the tenant (TAG Lincoln Place LLC) owed the City $394,735, $53,856 and $394,459 from unreported rental, parking and common area maintenance revenues respectively including late charges. The tenant's attorney provided additional documentation on June 6, 2014 whereby the City agreed to decrease the aforementioned total balance from $843,050 to $838,757 (see Exhibit A located at the end of this audit report for a summary breakdown of the corresponding calculations) to account for the agreement's section 3.3(c)(i)'s allowance of a 1,000 maximum square feet leasing office. The aforementioned late charges continue to be calculated through December 31, 2013 to remain in agreement with the initial audit report dated April 15, 2014 but they can be adjusted as necessary. The findings below summarize the methodology applied by which the tenant was deemed to also owe the City $184,852 for the 2013 calendar year which consists of $81,972 in rent, $14,793 in parking and $86,196 in common area maintenance plus $1,891 in total late charges as calculated through May 23, 2014 (the date that the 2013 percentage rent payment was received). When combined with the prior audit's reduced assessment amount of $838,757, the tenant now owes the City a combined total of $1,023,609 for the period of January 1, 2009 through December 31, 2013 as shown in Exhibit A. The City Administration should prospectively decide upon the appropriate course of action to pursue collection of this outstanding balance and to help prevent similar under reporting from occurring. The City Attorney's Office has had several negotiation discussions with the tenant's attorney concerning the $838,757 owed through December 2012 since the previous report's issuance but no agreement has been reached to date. If a consensus cannot be reached shortly, the City Attorney's Office among other options is considering filing a declaratory judgment action to obtain the court's legal determination of several debated agreement terms that resulted in the tenant's exclusion of these revenues from their annual true-up payments. FINDINGS 1. Finding -2013 Calendar Year Parent Company Rental Revenues were Excluded from the Annual Percentage Rent Calculations and Payment Resulting in the City being Owed $82,819 including Late Charges Section 3.3 of the lease agreement summarized states that the tenant (TAG Lincoln Place LLC) is to remit percentage rent each year equal to 2.5% of annual project We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. Internal Audit Report Lincoln Place Lease Payments Follow-Up Audit November 10, 2014 revenues as triggered by the sale leaseback date (May 25, 2006). This section continues to define project revenue which among other items includes all revenue, payments, income received, escalation adjustments, rent and operating cost reimbursements, common area maintenance charges and parking revenues. There is also a provision stating that if any space in the building is leased, or used by the tenant, any affiliate, subtenant or by any other person at a rental which is less than fair market value of such space, the rent shall be increased by an amount equal to the difference between the rent being paid and the fair market rental value. As determined during an April 7, 2014 site visit, the master subtenant's parent company (LNR 161h Street, LLC) occupied 90,954 rentable square feet {4,228 square feet for suite #185, 544 for suite #195, 9,014 for suite #200 and 19,542 each for the fifth, sixth, seventh and eighth floors less 1,000 maximum square feet allowed for an office per section 3.3(c)(i)) of the 108,966 (1 09,422 + 544 - 1 ,000) total available rentable office square feet inside Lincoln Place or 83.45%. Furthermore, the only other office subtenant's (Teleperformance Group, Inc.) 2013 rent was calculated at $36.05 per square foot which was used as a representation of fair market value. Internal Audit subsequently calculated the corresponding rent owed by multiplying the parent's 90,954 rentable square feet by $36.05 and then again by 2.50% to determine the applicable percentage rent due. Next, late charges were added after being calculated from the April 1, 2014 due date through May 23, 2014 (the date that the 2013 percentage rent payment was received) at an annual interest rate of 7.25% which is comprised of 4.00% + 3.25% prime rate in accordance with lease agreement sections 3.3(b) and 4.1. The following table provides the pertinent figures in calculating the total 2013 calendar year rent monies due that was incorrectly omitted from the tenant's percentage rent calculations and payment: Unreported Percentage Rent Monies Late Charges Total Rent Revenue from Rent Due Due Monies Due Parent $3,278,892 2.50% $81,972 $847 $82,819 2. Finding-Unreported 2013 Calendar Year Parking Monthly Access Card Revenues were Excluded from the Annual Percentage Rent Calculations and Payment Resulting in the City being Owed $14,946 including Late Charges Lincoln Place's parking garage provides revenues to the tenant through transient and monthly access card parking. Transient rates take effect after a five minute grace period expires ranging from a minimum of $2 for the first hour up to $20 for the day ($25 for special events). Meanwhile, monthly access card parking customers are to be charged $107 for Lincoln Place tenants and $160.50 for non-tenants permitting them to park in any eligible unoccupied space. Additionally, building tenants have the option of continuously reserving a designated parking space at $214 per month. The parking garage is comprised of 493 total available spaces with one space on the fourth floor fenced off to be used solely for storage while 100 have to be reserved for public usage at all times (transient parking) thereby making only 392 available for monthly access card customers. The Property Manager stated during an April 7, 2014 site visit that all monthly access card spaces are always used as there is a continuous shortage of parking on property which most likely would have been alleviated if the agreement's section 6.1 (b) requirement of providing at least 600 spaces would have Page 2 of 5 Internal Audit Report Lincoln Place Lease Payments Follow-Up Audit November 10, 2014 been satisfied. As stated in finding #1, parking revenues are to be included in project revenues for which the annual 2.50% percentage rent calculations are to be based. In addition, free monthly parking was not provided in Teleperformance Group, Inc.'s lease so the tenant should have included all monthly parking access card revenues at the applicable fair market value rates listed above of $107, $160.50 or $214 in their percentage rent calculations. Internal Audit confirmed that the tenant did not include all their parking revenues in the percentage rent calculations as required in the lease agreement based on review of the parking figures provided by the tenant in the annual percentage rent calculation schedules, Parking Revenue vs. Expenses analysis, parking garage diagrams submitted as of February 1, 2014, etc. One assumption made in the absence of additional documentation was that the parking garage rental rates and amounts provided for February 1, 2014 were in effect throughout the 2013 calendar year. The tenant's audited financial statements list the annual parking revenue amounts which immaterially differed from a supporting schedule showing each year's total transient and monthly parking revenues. Consequently, Internal Audit accepted the transient revenues as accurate and re-calculated the monthly access card parking fees based on the documentation provided as if all customers paid the established rates (except the Loews Hotel who is charged half price or $80 per month for each of its five overnight spaces). The tables below provide a numerical breakdown as to the methodology used to calculate the amount of unreported parking revenues and the corresponding total parking monies due for 2013: * Reported Calculated Total Parking Percentage Unreported Transient Monthly Revenues Rent Reported Parking Parking Garage Parking Revenues Revenues Revenues* Revenues $870,654 $547,290 $1,417,944 $826,195 $591,749 Per the tenant's provided February 1, 2014 records, the figures in this column are comprised of 26 building tenants paying $214 per month for reserved spaces, 342 unreserved building tenants paying $1 07 per month, five overnight spaces used by the Loews Hotel at $80 per month and 19 outside customers paying $160.50 per month. Unreported Percentage Parking Monies Late Charges Total Parking Parking Rent Due Due as of Monies Due Revenues 06/10/14 $591,749 2.50% $14,793 $153 $14,946 3. Finding -Unreported 2013 Calendar Year Common Area Maintenance Revenues were Excluded from the Annual Percentage Rent Calculations and Payments Resulting in the City being Owed $87,087 TAG Lincoln Place LLC each year estimates the property's real estate taxes, insurance and operating expenses and allocates them proportionately to the building's tenants who pay a fixed monthly rate. At year end, a true-up occurs and each building tenant is charged or refunded monies based on the comparison of actual charges to those billed and paid. Common area maintenance or CAM is to include along with all operating expenses; wages, salaries and benefits of all employees engaged in the operation and management of the property; cost of all utilities not separately metered and paid directly Page 3 of 5 Internal Audit Report Lincoln Place Lease Payments Follow-Up Audit November 10,2014 by tenants; cost of all insurance relating to the property; etc. As stated in finding #1, CAM is to be included in project revenues for which the annual 2.50% percentage rent calculation is based but testing found that it was omitted. Consequently, Internal Audit used the amount of CAM (including janitorial and electricity expenses) listed on the tenant's provided annual Actual Operating Expenses Report used for the true-up to calculate the corresponding percentage rent monies due for 2013 including late charges as shown in the following table: Unreported Percentage CAM Late Charges Total CAM CAM Rent Monies Due Due Monies Due Revenues $3,447,857 2.50% $86,196 $891 $87,087 JJS:MC:mc Follow-up Limited Scope Audit Engagement performed by Senior Auditor Mark Coolidge F:\OBPI\$AUD\INTERNAL AUDIT FILES\DOC13-14\REPORTS-FINAL\LINCOLN PLACE RPT FOLLOW UP.docx cc: Kathie G. Brooks, Assistant City Manager Max Sklar, Tourism, Cultural Affairs & Economic Development Director Patricia Walker, Chief Financial Officer Page 4 of 5 Internal Audit Report Lincoln Place Lease Payments Follow-Up Audit November 10, 2014 Exhibit A-Final Computations for Amounts owed for Calendar Years 2009 to 2013 1. Rental Revenues Summary Analysis Calendar Parent Subtenant Unreported Percentage Rent Late Total Year Occupied Rent per Revenue Rent Monies Charges Rent Rentable Square Foot from Parent Due Due Monies Square Owed Footage 2009 90,954 $36.50 $3,319,821 2.50% $82,995 $22,585 $105,580 2010 90,954 $37.50 $3,410,775 2.50% $85,269 $17,022 $102,291 2011 90,954 $38.50 $3,501,729 2.50% $87,543 $11,112 $98,655 2012 90,954 $35.00 $3,183,390 2.50% $79,585 $4,331 $83,916 Subtotal $13,415,715 $335,392 $55,050 $390,442 2013 90,954 $36.05 $3,278,892 2.50% $81,972 $847 $82,819 Total $16,694,607 $417,364 $55,897 $473,261 2. Parking Revenues Summary Analysis Calendar Reported Monthly Total Audited Total Parking %age Parking Late Total Year Transient Access Parking Reported Revenues Rent Monies Charges Parking Revenues Card Revenues Parking Difference Due Due Monies Revenues Revenues Owed 2009 $730,138 $547,290 $1,277,428 $826,195 $451,233 2.50% $11,281 $3,070 $14,351 2010 $860,215 $547,290 $1,407,505 $963,107 $444,398 2.50% $11,110 $2,218 $13,328 2011 $893,090 $547,290 $1,440,380 $976,835 $463,545 2.50% $11,589 $1,470 $13,059 2012 $785,912 $547,290 $1,333,202 $835,557 $497,645 2.50% $12,441 $677 $13,118 Subtotal $3,269,355 $2,189,160 $5,458,515 $3,601,694 $1,856,821 $46,421 $7,435 $53,856 2013 $870,654 $547,290 $1,417,944 $826,195 $591,749 2.50% $14,793 $153 $14,946 Total $4,140,009 $2,736,450 $6,876,459 $4,427,889 $2,448,570 $61,214 $7,588 $68,802 3. Common Area Maintenance (CAM) Revenues Summary Analysis Calendar Unreported CAM Percentage CAM Late Charges Total CAM Year Revenues Rent Monies Due Due Monies Owed 2009 $3,391,770 2.50% $84,794 $23,074 $107,868 2010 $3,452,403 2.50% $86,310 $17,230 $103,540 2011 $3,314,607 2.50% $82,865 $10,518 $93,383 2012 $3,401,576 2.50% $85,040 $4,628 $89,668 Subtotal $13,560,356 $339,009 $55,450 $394,459 2013 $3,447,857 2.50% $86,196 $891 $87,087 Total $17,008,213 $425,205 $56,341 $481,546 4. Total Monies Owed (January 1, 2009 through December 31, 2013) Calendar Total Rent Total Parking Total CAM Monies Owed Late Total Owed Year Monies Owed Monies Owed Monies Owed Before Late Charges CharQes 2009 $82,995 $11,281 $84,794 $179,070 $48,728 $227,798 2010 $85,269 $11,110 $86,310 $182,689 $36,470 $219,159 2011 $87,543 $11,589 $82,865 $181,997 $23,101 $205,098 2012 $79,585 $12,441 $85,040 $177,066 $9,636 $186,702 Subtotal $335,392 $46,421 $339,009 $720,822 $117,935 $838,757 2013 $81,972 $14,793 $86,196 $182,961 $1,891 $184,852 Total $417,364 $61,214 $425,205 $903,783 $119,826 $1,023,609 Page 5 of 5