HomeMy WebLinkAboutR-95-0832N
RESOLUTION NO. 9 5 - 8 3 2
A RESOLUTION, WITH ATTACHMENTS, APPROVING AN
INTERLOCAL AND LEASE AGREEMENT, IN
SUBSTANTIALLY THE ATTACHED FORM, WITH
METROPOLITAN DADE COUNTY FOR THE DEVELOPMENT
OF THE MARITIME PARK PROJECT; AUTHORIZING THE
CITY MANAGER TO EXECUTE THE SAME UPON
FULFILLMENT OF CERTAIN CONDITIONS.
WHEREAS, on April 14, 1994 the City of Miami ("City"),
pursuant to Resolution No. 94-261, authorized the City Manager to
enter into a Pre -Development Agreement with Metropolitan Dade
County ("County") which provided for the development of the city
owned waterfront properties known as the FEC Property and the
Bicentennial Park Property ("Project"); and
WHEREAS, the City and the County ("Parties") pursuant to the
conditions set forth in the Pre -Development Agreement have
negotiated an agreement entitled Interlocal and Lease Agreement
for Maritime Park Project ("Agreement") which provides for the
development of the Project; and
WHEREAS, on November 21, 1995 the County approved the
Agreement and authorized the County Manager to execute the same
upon fulfillment of certain conditions;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE
CITY OF MIAMI, FLORIDA:
ATTACHMENT (S)
CONTAINED
:CITY COMMISSION
MEETING OF
DEC 0 7 1995
Resolution No.
95- 832
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The City Commission hereby approves the
attached Agreement with the County, and authorizes the City
Manager to execute the same, in substantially the form attached
hereto, after final review by the City Attorney and after
fulfillment of the following conditions:
1. The City obtaining clear title to the proposed leased
property, including a release from Bayside Center
Limited Partnership (Bayside), of Bayside Is existing
leasehold interest in a portion of the proposed leased
property which release shall be obtained by the
execution of an amendment to the agreement dated
July 19, 1988, by and between the City, the County and
Bayside.
2. Establishment of the Maritime Park Board and
appointment of two city commission members thereto
pursuant to the appropriate legal requirements.
Section 3. This Resolution shall be become effective
immediately upon its adoption.
PASSED AND ADOPTED this 7th d of December 1995.
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ATTEST:'
STEP EN P. CLAP , MAYOR
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APPROVED AS TO FORM AND
CORRECTNESS:
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This Interlocal and Lease Agreement ("Agreement"), dated this day of ,
1995, is made by and between the City of Miami, a municipal corporation of the State of Florida
(the "City"), and Metropolitan lade County, a political subdivision of the State of Florida (the
"County"), pursuant to The Florida Interlocal Cooperation Aq of 1969, Chapter 163, Florida
Statutes (1993) (the "Act").
RECITALS
WHEREAS, the Act authorizes local governmental units to make the most efficient use of
their powers by enabling them to cooperate with other localities on a basis of mutual advantage to
jointly provide facilities in a•manner that will accord best with the needs of the local communities;
and
WHEREAS, the City and the County (the "Parties") have deemed that the development of
the Maritime Park Project, as defined herein, on certain waterfront properties including adjoining
bay bottom lands owned by the City, as described herein, is in the best interest of the City and the
County; and
WHEREAS, the Parties plan to develop the Maritime Park Project in two phases; and
I WHEREAS, the City desires to lease the FEC Property, as defined herein to the County,
for an initial term of 45 years with three 15-year option terms, to develop the Maritime Park
Project; and
WHEREAS, the City desires to grant the County an option to lease the Bicentennial Port
Property and/or the Bicentennial Park Property, as defined herein, subject to certain reservations
and conditions, for purposes of undertaking the development of the second phase of the Maritime
Park Project; and
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NOW, therefore, in consideration of the mutual covenants and agreements stated the
County and the City agree as follows:
ARTICLE I
PURPOSE �-
Section 1.1 Purpose. The purpose of this Agreement is to set forth the terms and
conditions pursuant to which the Maritime Park Project will be developed and operated. The
Project, if fully developed, is designed to expand the facilities of the Port of Miami, enhance and
preserve certain City park areas and to create specialty attractions. This Agreement also provides
for the creation of a Maritime Park Board, as more particularly described in Article 6 hereof, to
oversee certain aspects of the development of the Maritime Park Project.
ARTICLE 2
DEF'INITIONS
Section 2.1 Definitions. Unless specifically provided elsewhere in this Agreement, the
capitalized terms shall have the meanings set forth below:
(a) "Accrual Basis" shall mean the method of accounting which recognizes revenues and
expenses in the period which they occur, whether paid or not.
(b) "Agreement Date" shall mean the date on which this Agreement is signed by both the
City and the County.
(c) "Alternate Non -Port Facilities" shall mean the Alternate Non -Port Facilities for Phase
I and/or Phase II, as the case may be, as described in Subsection 5.4 and depicted in Exhibit "A",
sheet
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(d) "Annual base Rent" shall mean the guaranteed minimum annual rent payment
described in Article 7 of this Agreement.
(e) "Bicentennial Park Property" shall mean land owned by the City legally described in
Exhibit "B", sheet
(fj "Bicentennial Port Property" shall mean the parcel of land owned by the City legally
described in Exhibit "B", sheet
(9) "Bicentennial Property" shall mean the parcel of land owned by the City legally
described in Exhibit "B", sheet
(h) "Board" shall mean the Maritime Park Board established and created in accordance
with the provisions of Article 6 of this Agreement.
(i) "Burle Marx Design Plan" shall mean the plan approved by City of Miami Resolution
No. 88-628, dated July 14, 1988 and prepared by Roberto Burle Marx, which among other things,
provides for the dedication of a strip of land within the Leased Property for the proposed
expansion of Biscayne Boulevard, as legally described in Exhibit T .
(j) "City- Commission" shall mean the City Commissioners of the City of Miami.
(k) "Cleanup Costs" shall have the definition provided in Section 17.4 hereof.
(1) "Concept Plans" shall mean the initial drawings indicating the location of uses, types of
uses, and site layouts of the Project attached hereto as Exhibit "A", as may be amended from time
to time in accordance with the provisions of this Agreement.
(m) "Commencement Date" shall mean the first day of the month following the
Agreement Date.
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(n) "Commencement of Port Operations" shall mean, with respect to Phase 1, the
embarking or disembarking of passengers from cruise ships or vessels at the Phase I Port
Facilities; and with respect to Phase I1, shall mean the embarking or disembarking of passengers
from cruise ships or vessels at the Phase II Port Facilities, as the case may be.
(o) "County" shall mean Metropolitan Dade County, the Seaport Department, and/or any
authority or body designated by the County Board to operate or oversee the operations of the
Port Facilities.
(p) "County Board" shall mean the Board of County Commissioners of Metropolitan
Dade County.
(q) "Debt Service Requirements" shall mean, for any period of time or any date, the
required principal and interest payment, whether at stated maturity, by mandatory sinking fund
redemption or otherwise, all debt -related costs (i.e., credit enhancement, bank fees, etc.) and any
premium due on the bonds or any other indebtedness during that period or payable on that date,
as the case may be, associated with debt incurred to acquire, construct, refinance, rehabilitate,
improve or otherwise maintain all, or a portion of, the Maritime Park Project.
(r) "Developer" shall mean one or more persons or public or private entities selected in
accordance with the provisions of Article 6 of this Agreement for the development of the
Non -Port Facilities.
(s) "Development Agreement" shall mean an executed contract or contracts, between the
County and the Developer which have been approved for execution by the County Board, or a
Iletter from the County Manager to the City advising the City that the County will act as a
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developer, along with a Resolution of the County approving such action, with respect to the
development of the Non -Port Facilities.
(t) "Development Program" shall mean an itemized listing of uses 4nd facilities to be
agreed upon between the Developer and the Board which shall be consistent with the description
of the Project described in Article 5 of this Agreement.
(u) "Environmental Laws" shall mean all applicable requirements of federal, state and
local, environmental, public health, and safety laws, regulations, orders, permits, licenses,
approvals, ordinances and directives, including but not limited to, all applicable requirements of:
the Clean Air Act; the Clean Water Act; the Resource Conservation and Recovery Act, as
amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act;
the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act of 1986; the Occupational Health and Safety
Act; the Toxic Substances Control Act; the Pollutant Discharge Prevention and Control Act; the
Water Resources Restoration and Preservation Act; the Florida Air and Water Pollution Control
Act; the Florida Safe Drinking Water Act; and the Florida Environmental Reorganization Act of
1975.
(v) "Existing City Bond Obligations" shall mean the outstanding principal balance of the
bonds plus accrued interest authorized pursuant to City Ordinance No. 8034 and issued under the
"Parks fdr People", specifically, the 1972 Parks Bond issue, and the 1977 General Obligation Park
and Recreation Facilities Bonds issue.
(w) "Existing Contamination" shall have the definition provided in Section 17.3 hereof.
(x) "FEC Property" shall mean the parcel of land owned by the City legally described in
Exhibit "B", including certain submerged lands depicted in such exhibit.
(y) "Fiscal Year" shall mean that period of time that commences on October 1 st and ends
on September 30 of the following calendar year or any other twelve (l 2) month period designated
by the County to be its fiscal year.
(z) "Initial Term" shall have the meaning ascribed to it in Subsection 4.1 of this
Agreement.
(aa) "Leased Property" shall mean the FEC Property. In the event that the County
exercises.the Phase I Option, then this Agreement shall cover and demise the Phase I Option
Property and reference to the Leased Property in this Agreement shall thereafter be deemed to
include the Phase I Option Property. In the event the -County exercises the Bicentennial Port
Property portion of the Phase II Option, then this Agreement shall cover and demise the
Bicentennial Port Property and reference to the Leased Property in this Agreement shall thereafter
be deemed to include the Bicentennial Port Property. In the event the County exercises the
Bicentennial Park Property portion of the Phase II Option, then this Agreement shall cover and
demise the Bicentennial Park Property and reference to the Leased Property in this Agreement
shall thereafter be deemed to include the Bicentennial Park Property. In the event the City
dedicates the Property referenced in the definition of Burle Marx Design Plan, and described in
Exhibit I) hereto, to the Florida Department of Transportation for the purposes enumerated in the
Burle Marx Design Plan, then such Property shall be deleted from the definition of "Leased
Property" and all obligations of County undertaken herein with respect to such Property shall
immediately cease.
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(bb) "Maritime Park Project" or "Project" shall mean the development of the Port
Facilities, the Non -Port Facilities or the Alternate Non -Port Facilities, as the case may be, on the
Leased Property. M
(cc) "Net Net Revenues", for purposes of Article 7 herein, shall mean Revenues minus
Operating Expenses, Debt Service Requirements, and the annual funding of the Renewal and
Replacement Fund as required in Article 16 herein.
(dd) "Non -Port Facilities" shall mean the proposed components of the Project described
in Sections 5.2(b) and 5.3(b) of this Agreement.
(ee) "Operating Expenses" shall mean all actual expenses of the Maritime Park Project for
the operation, maintenance and administration of the Maritime Park Project facilities including the
basic, ordinary and routine repairs of the Maritime Park Project, cost of administrating and any
and all non -capital expenses associated with the use of gifts, grants, loans or other payments, both
restricted and unrestricted, received from private agencies, either federal, state or local, directly or
indirectly, for the benefit of the Project incurred, or charges made therefor, in any particular Fiscal
Year, but only if said charges are made in conformity with generally accepted accounting
principles, and exclusive of depreciation or reserves therefor, amortization of intangibles or other
bookkeeping entries of a similar nature. Net Operating losses incurred in any Fiscal Year shall be
carried forward as an Operating Expense until the earlier of (i) the thirteenth anniversary of the
Commencement Date or (ii) the first Fiscal Year in which Net Net Revenues are available. Once
(i) or (ii) in the preceding sentence has been achieved, net operating losses incurred in a prior
Fiscal Year shall not be treated as an Operating Expense for purposes of calculating Net Net
Revenues. Operating Expenses shall not include: (i) any operating and maintenance expense paid
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or accrued by the County in connection with a building or facilities where a third -party Sublessee,
licensee, or user thereof pays such expenses or reimburses the County for such expenses; (ii) Debt
Service Requirements; (iii) Subordinated Debt Service Charges; (iv) any other expense for which
or to the extent which the Maritime Park Project is reimbursedfrom or through any source other
than Revenues; and (v) any expenditures funded from the Renewal acid Replacement Fund.
(f) "Park Facilities" shall mean the City park(s) consisting of landscaped open space and
exterior public walkways and plaza, as more particularly described in Sections 5.2(b)(i) and
5.3(b)(i), the actual boundaries of which shall be depicted in an Exhibit to be prepared by the
County after completion of the Improvements, as defined in Section 8.2.
(gg) "Phase I" shall mean the development of the Port Facilities and the Non -Port
Facilities or the Alternate Non -Port Facilities on the FEC Property, as more particularly described
and depicted in this Agreement in Article 5 and Exhibit "A", sheet
(hh) "Phase I Non -Port Facilities" shall mean the Non -Port Facilities to be developed on
the FEC Property as more particularly described in Sections 5.2 of this Agreement and as
depicted in Exhibit "A", Sheet
(ii) "Phase I Option" shall mean the right given to the County by the City to (i) lease the
Phase I Option Property and (ii) to relocate, widen, and/or deepen the deep water slip currently
located between the FEC Property and the Bicentennial Property onto the Bicentennial Port
Property, as more particularly described in Exhibit A, sheet —
0) Phase I Option Property" shall mean the property for which the County has been
granted the Phase I Option, as more particularly described in Exhibit
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(kk) "Phase I Option Term" shall mean a period of time commencing on the Agreement
Date and ending one -hundred and eighty-one days (181) thereafter.
(11) "Phase I Port Facilities" shall mean the Port Facilities to be developed on the FEC
Property as more particularly described in Section 5.2 of this Agreement and as depicted in
Exhibit "A", sheet
(mm) "Phase II" shall mean the proposed development of the Port Facilities, the Non -Port
Facilities or the Alternate Non -Port Facilities, as the case may be, on the Bicentennial Property or
the Bicentennial Port Property, as the case may be, as more particularly described in this
Agreement in Article 5 and depicted in Exhibit "A", sheet
(nn) "Phase II Non -Port Facilities" shall mean, in the event the County exercises its
option on the Phase II Non -Port Facilities and a Development Agreement is executed, the
Non -Port Facilities to be developed on the Bicentennial Property as more particularly described in
Sections 5.3 and 5.4 of this Agreement and depicted in Exhibit "A", sheet —
(oo) "Phase II Port Facilities" shall mean the Port Facilities to be developed on the
Bicentennial Property as more particularly described in Section 5.3 of this Agreement and as
depicted in Exhibit "A", sheet _
(pp) "Phase H Option" shall mean the rights given to the County by the City to lease the
Bicentennial Park Property and/or the Bicentennial Port Property, as the case may be, for
purposes of developing the Phase II Port Facilities and/or the Phase II Non -Port Facilities, as the
case may be, as more particularly described in Article 18 herein. The County's exercise of the
: { Phase II Option with respect to the Bicentennial Port Property shall not terminate the remaining
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portion of the Phase II Option with respect to the Bicentennial Park Property, nor shall such
exercise cause the remaining portion of the Phase I1 Option Term to lapse or otherwise expire.
(qq) "Phase II Option Term" shall mean, with respect to the Bicentennial Port Property, a
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period of time commencing on the Agreement Date and ending on the earlier of (i) the County's
exercise of all or a portion of the Phase II Option or (ii) the expiration of a five-year period
beginning on the completion of the Phase I Port Facilities; and shall mean, with respect to the
Bicentennial Park Property, a period of time commencing on the Agreement Date and ending on
the later of (i) the expiration of a five-year period beginning on the completion of the Phase I Port
Facilities or (ii) the expiration of a five-year period commencing on the date the County exercises
all or a portion of its Phase II Option.
(rr) "Port Facilities" shall mean the Phase I Port Facilities and, in the event the County
exercises the Phase II Option, the Phase II Port Facilities, as the case may be.
(ss) "Preliminary Plans" shall mean the design development drawings of the Non -Port
Facilities to scale depicting site plans, floor plans, circulation and preliminary elevations.
(tt) "Prime Interest Rate" shall mean the annual rate of interest charged by the bank in
Dade County having the greatest net worth at the applicable time on a 90 day commercial loan to
its most credit worthy corporate borrowers.
(uu) "Project Costs" shall mean an amount equal to the aggregate of all costs incurred
and capitalized by the County during the term of this Agreement for the purpose of and properly
allocated to the development and construction of the Project, including, without limitation, all
environmental Cleanup Costs, as defined in Section 17.4 hereof.
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(vv) "Project Funds" shall mean (i) an amount sufficient to construct the Phase I Port
Facilities and, in the event the County exercises either the Phase I Option or the Phase II Option,
the Phase lI Port Facilities and (ii) either fifty six million one hundred thousand dollars
($56,100,000) for the payment of Project Costs associated with the Phase I Non -Port Facilities of
the Project, if a Development Agreement is executed, or the payment of that portion of Project
Costs associated with the Phase I Alternate Non -Port Facilities of the Project in the amounts
described in Section 5.4(a) hereof, if a Development Agreement is not executed, and (iii) if the
County exercises its Phase II Option on the Bicentennial Park Property, either an amount of not
less than fifty five million dollars ($55,000,000) for the payment of Project Costs associated with
the Phase II Non -Port Facilities, if a Developer is selected, or the payment of Project Costs
associated with the Phase II Alternate Non -Port Facilities of the Project in the amount described
in Section 5.4(b), if a Development Agreement is not executed.
(xx) "Renewal and Replacement Fund" shall mean the Maritime Park Project Renewal
and Replacement Fund created pursuant to Article 16 of this Agreement.
(yy) "Revenues" shall mean all revenues earned by the County derived from the Maritime
Park ProjecVs operation, use and services including, without limitation, all moneys for the use of
advertising space and all advertising rights of whatever kind or nature related thereto or for the
sale, promotion, marketing and use of all names, trademarks, trade names, and passenger
wharfage fees, dockage fees, ground transportation fees, income from the sale of water and
electric, parking receipts, rental receipts, and any and all legally available interest income realized
from the investment of Revenues. Revenues shall be determined in a consistent manner on an
Accrual Basis. Revenues shall also include: (i) gifts, grants, loans or other payments received
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from private persons or public agencies, either federal, state or local, directly or indirectly to pay
for operating or administrative expenses or other non -capital costs associated with the use of
proceeds obtained from these sources, provided, however, that proceeds received from these
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sources for specific capital expenditures will be held in a resti feted account for the purposes of
paying such expenditures, and shall not be counted as Revenues, nor shall expenditures from such
restricted account be counted as an Operating Expense; (ii) proceeds from the sale of any of the
Maritime Park Project facilities; (iii) the profit from the sale or other disposition, not in the
ordinary course of business, of any fixed or capital assets of the Maritime Park Project; and (iv)
any operating and maintenance expenses recovered by the County or Developer from a judgment
or settlement against a Sublessee.
(zz) "Seaport Department" shall mean the Seaport Department of Metropolitan Dade
County or its successor.
(aaa) "Subleasehold Mortgage" shall mean a mortgage or mortgages or other similar
security agreements given to any Subleasehold Mortgagee, or made pursuant to the terms of this
Agreement, on a Sublease and the Subleasehold interest of a Sublease hereunder, and shall be
deemed to include a mortgage or trust indenture under which the Sublease shall have been
mortgaged.
(bbb) "Subleasehold Mortgagee" shall mean any recognized lending institution, such as a
bank, federal, state or municipal governmental agency or bureau, savings and loan, pension fund,
insurance company, savings bank, real estate investment trust, whether local, national or
international which becomes the mortgagee or beneficiary under any Subleasehold Mortgage and
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the successors or assigns of such mortgagee or beneficiary, and shall be deemed to include the
trustee under any such mortgage or trust indenture and the successors or assigns or such trustee.
(ccc) "Sublease" shall mean a Sublease of all or a portion of the Leased Property.
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(ddd) "Sublessee" shall mean the lessee, its successors or assigns under any such
Sublease.
(eee) "Substantial Completion" shall mean that the Non -Port Facilities have been so
completed that they are finished and/or ready for the beneficial use and occupancy of the City, the
County, and any tenants under this Agreement. Substantial Completion need not include any
tenant's finishing work.
(fi) "Unavoidable Delays" shall mean (with respect to the County`s obligation regarding
construction) any delay caused by: damage or destruction by fire or other casualty, whether
similar or dissimilar, acts of the federal or state governments, or acts of the City (other than as
contemplated by this Agreement), strikes, embargoes, shortages of material, unusually adverse
weather conditions, or other like or unlike events or conditions beyond the control of the County.
and without its fault or negligence.
Section 2.2 Rules of Construction. Unless the context clearly indicates otherwise:
(a) words in the singular include the plural, and words in the plural include the
singular;
(b) a pronoun in one gender includes and applies to the other gender as well;
(c) all references to Articles and Sections shall refer to this Agreement;
(d) the terms "hereof', "hereto", "herein", "hereunder", and comparable terms refer to
this Agreement; and not to any particular article, section or other subdivision thereof.
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(e) all exhibits attached to this Agreement are hereby incorporated in this Agreement
by reference to each.
ARTICLE 3
THE DEMISE
Section 3.1 The Demise. The City hereby leases to the County and the County leases
from the City, the Leased Property, legally described in Exhibit B, attached hereto and by this
reference made a part hereof for the purposes and uses set forth in this Agreement.
ARTICLE 4
TERM
Section 4.1 Initial Term. The term of this Agreement shall be for a period of forty five
(45) years, commencing on the Commencement Date and terminating in the year 2041 on the
anniversary date of the Commencement Date.
Section 4.2 Extension Terms. The County, in its discretion, has the option to extend
the term of this Agreement for up to three additional terms of (15) fifteen years (each such fifteen
year term shall be referred to as an "Extension Term") upon the same terms and conditions
contained in this Agreement, except for the amount of Annual Base Rent which shall be adjusted
as provided for in Article 7, and provided that the County is not in default hereunder at the time it
exercises any option to extend this Agreement. In the event the County elects not to extend this
Agreement, the City shall be notified in writing at expiration of least one hundred eighty days
(180) prior to the Initial Term or any Extension Term. In the event the County does not give such
notice, this Agreement shall be automatically extended at the expiration of the then existing term.
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Section 4.3 Agreement Term. The Initial Term and all Extension Terms are herein
collectively referred to as the "Agreement Term".
ARTICILE 5
THE PROJECT 1
Section 5.1 Development of the Project. The Maritime Parts Project shall be
developed in two phases. Phase I shall consist of the development of the FEC Property in
accordance with the provisions of this Agreement. In the event the County exercises either the
Phase I Option or the Phase II Option, Phase II shall consist of the development of the Phase II
Port Facilities and, if applicable, the Phase II Non -Port Facilities, which shall be developed in
accordance with the Concept Plans. In order to facilitate the development of Phase II, the City
agrees to grant to the County the Phase II Option for which conditions are specifically described
in Article 18 of this Agreement.
Section 5.2 Description of Phase I. Phase I of the Maritime Park Project generally
consists of the improvements to be constructed on the FEC Property as follows.
(a) Phase I Port Facilities. The Port component of the Project consists of.
(i) Port Facilities. Berths dedicated for non -cargo maritime vessels, primarily
cruise ships, including cruise ships that may carry cargo that is incidental to their operation and
one or two cruise terminal building(s) adjacent to the berths, including all support facilities and
operational space required for the operation of the terminals) and all surface access and egress
roadways necessary to serve the Project in accordance with the site plan attached and made a part
of this Agreement as Exhibit A.
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(ii) Parking. A public parking garage, in accord with the Concept Plans
containing approximately 900 parking spaces, of which not less than one third of the parking
spaces shall be reserved for users of the Port Facilities. The transportation and parking area shall
contain bus parking bays that shall be made available for Non-Rort Facilities usage during those
days when cruise ships do not berth at the Port Facilities. No more than two-thirds of the
900 parking spaces shall serve as general public parking for users of the Phase I Non -Port
Facilities.
(b) Phase I Non -Port Facilities. In the event a Development Agreement is executed,
the Phase I Non -Port Facilities shall consist of the following amenities which are depicted in the
Concept Plans:
(i) City Park Facilities. A City park consisting of landscaped open space
and exterior public walkways and plazas located at grade or over building structures ("Phase I
City Park") providing recreational amenities and facilities for passive and active recreational use
by the general public and public pedestrian access proximate to the shoreline of the deep water
slip and Biscayne Bay, consistent with efficient and safe operations for maritime vessels.
(ii) Public Tropical Botanical Gardens. Three to five acres designed as a
part of and complement to the Phase I City Park and open space consisting of a botanical garden
of tropical and subtropical plants from the Caribbean and South and Central America.
(iii) Specialty Attractions. Structures of not more than four (4) levels with a
maximum floor area of approximately one hundred and fifty thousand (150,000) square feet per
level of gross enclosed rentable public museum, retail, other commercial and/or special visitor
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attraction space with approximately forty (40%) percent of the space dedicated to public
not -for -profit educational and cultural institutions.
(iv) Pedestrian Bridge Connection to Bayside. A plaza extension of
Bayside's north pavilion walkway system spanning Port Boulevard to the park level of the Project.
This plaza. may contain specialty retail space and attractions. Such space shall be in addition to
that permitted under subsection (iii) above.
Section 5.3 Description of Phase II. In the event the County exercises either the
Phase I Option or the Phase II Option, Phase II of the Maritime Park Project shall generally
consist of the improvements to be constructed on the Bicentennial Property as follows.
(a) Phase 11 Port Facilities. The Port component of the Project consists of.
(i) Port Facilities. Berths dedicated for non -cargo maritime vessels, primarily
cruise ships or cruise ships that may carry cargo that is incidental to their operation, and one or
two cruise terminal building(s) adjacent to the berths, including all support facilities and
operational space required for the operation of the terminal(s) and all surface access and egress
roadways necessary to serve the terminal.
Parking. A public parking garage in accord with the Concept Plans
containing approximately 900 parking spaces of which not less than one third of the parking
spaces shall be reserved for users of the Port Facilities. The transportation and parking area shall
contain bus parking bays that shall be made available for Non -Port Facilities usage during those
days when cruise ships do not berth at the Port Facilities so as to necessitate exclusive use of said
bus bays. No more than two thirds of the 900 parking spaces shall serve as general public parking
for users of the Phase II Non -Port Facilities.
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(b) Phase 11 Non -Port Facilities. In the event that a Development Agreement is
executed, the Phase II Non -Port Facilities shall consist of the following amenities which are
depicted in the Concept Plans.
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(i) City Park Facilities. A City park consisting of landscaped open space and
exterior public walkways and plazas located at grade or over building structures providing
recreational amenities and facilities for passive and active recreational use by the general public
and public pedestrian access proximate to the shoreline of the deep water slip and Biscayne Bay,
consistent with efficient and safe operations for maritime vessels. A specific program of uses and
improvements for Phase II shall be refined through additional planning studies as may be prepared
by the Maritime Park Board, provided that such program is subject to approval by the City and
County Commissions.
(ii) Parking. Depending on the final development plans for the Phase II
Non -Port Facilities, additional parking may be required which might result in the construction of
additional parking garages to support the Project.
(iii) Specialty Attractions. Specialty attractions that will collectively and in
concert with Phase I attractions create a regional destination visitor attraction for downtown
Miami. A specific program of uses and improvements for Phase II shall be refined through
additional planning studies which may be prepared by the Maritime Park Board and approved by
the City and County Commissions.
Section 5.4 Alternate Non -Port Facilities.
(a) Phase I. In the event that the Board fails to select and/or the County fails to
execute a Development Agreement, or if there is no response to the Developer solicitation, then
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the Phase I Non -Port component of the Project shall consist of park improvements at a cost not
to exceed nine million one hundred thousand dollars ($9,100,000), and a simple overhead
pedestrian bridge from the FEC Property, across Port Boulevard, and tying into Bayside, at a cost
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not to exceed five hundred thousand dollars ($500,000). Notv4thstanding the foregoing, the
County's obligation to construct such pedestrian bridge to Bayside shall cease and have no effect
unless the City is able to provide the County, within sixty days of the Agreement Date, with an
irrevocable easement from City and Rouse, (i) authorizing the County to construct the pedestrian
bridge from the FEC Property to Bayside and (ii) warranting that access into Bayside via the
bridge shall not be denied or impaired on any dates or times during which Bayside is open to the
general public. Such overhead pedestrian bridge may be developed in accordance with the
Concept Plans for the Phase I Non -Port Facilities upon the agreement of the City and the County.
(b) Phase H. In the event that the County exercises its Phase II Option on the
Bicentennial Park Property and the Board fails to select a Developer and/or the County fails to
execute a Development Agreement, or if there is no response to the Developer solicitation, then
the Phase II Non -Port component of the Project shall consist of park improvements at a cost not
to exceed fifteen million dollars ($15,000,000) in accordance with the Concept Plans, provided,
however, the cost shall be reduced on a pro-rata basis in relation to the size of any parcel for
which the City has exercised an option with respect to the Bicentennial Park Property.
Section 5.5 County's Responsibility to Obtain Project Funds. The County shall be
responsible for obtaining Project Funds in accordance with the terms and conditions of this
Agreement, in particular Section 5.7, provided, however, that under no circumstances shall the
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County be required to pay for any of the Project Costs from County revenues derived from ad
valorem taxation unless authorized through a legally binding referendum.
Section 5.6 Financing and/or Refinancing of the Project Funds. The County may
provide, at one time or from time to time, for the issuance of bonds for the purpose of paying all
or a part of the County's obligations under this Agreement subject only to the limitations set forth
in this Subsection with respect to a refunding and/or a refinancing. The County may refinance
outstanding bonds which shall have been issued for purposes of financing any of its obligations
under this Agreement provided that:
(a) The County shall provide the City notice of such refinancing.
(b) The savings from any such refinancing may be utilized for any of the following
purposes:
(i) to finance all, or any portion of, Phase II; or
(ii) to make further improvements to the Leased Property; or
(iii) if such refinancing occurs subsequent to the development of all, or any
portion of, Phase II to purchase or redeem any outstanding bonds.
(c) Any present value savings used for purposes other than those stated above which
result from any such refinancing of any outstanding bonds and occurs subsequent to the
development of all, or a portion of, Phase II, shall be accounted for as Revenues.
Section 5.7 County's Construction Obligations. The County shall be responsible for
providing all Project Funds for the Port Facilities and, if applicable, the Non -Port Facilities
including, without limitation (i) all construction costs, (ii) all costs of furnishings and furniture,
machinery and equipment and (iii) all so-called "soft costs" including, but not necessarily limited
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to architectural, engineering and design fees, survey, title insurance charges and premiums,
permits and licenses, insurance premiums during construction, utilities, tap -in connection fees,
topographical and soil tests, if any, and (iv) environmental Cleanup Costs, as provided for in
Article 17 herein, and (v) all other costs, if any, occurring during the construction of the Project.
Nothing contained in this section shall impose upon the County an obligation to expend funds in
excess of the Project Funds. The City agrees that Project Funds may be financed from lease
payments received by the County from a Developer.
Section 5.8 Bond Obligations. The County shall comply with any requirements
pertaining to construction and construction funds that are applicable to the Project and are set
forth in any existing bond documents or in any financing documents for the Project.
ARTICLE 6
MARITIME PARK BOARD
Section 6.1 Maritime Park Board Created. There is hereby created and established
pursuant to the provisions of Section 163.01, Florida Statutes (1993), a separate legal entity
known as the "Maritime Park Board".
Section 6.2 Purpose. The Board shall oversee certain aspects of the development of
Phase I of the Project pursuant to the powers and duties set forth in Subsection 6.4 of this Article
for the purpose of reviewing and approving the design of the Non -Port Facilities. Additionally, the
Board, shall accomplish the solicitation and selection of the Developer for the Non -Port Facilities
subject to final approval by the County Board.
Section 6.3 Composition, Appointments and Term of Office.
(1) The City Commission and the County Board no later than two weeks from the
Agreement Date, shall make the appointments to the Board as provided herein. The Board shall
consist of five (5) members, two (2) of whom shall be city commissioners serving as ex officio
voting members appointed by the City Commission and two (2) of whom shall be county
commissioners serving as ex officio voting members appointed by the County Board. The duly
appointed members of the Board as soon as practicable, but in no event later than thirty (30) days
after the appointment of the last ex officio member, shall meet and nominate, and by majority vote
shall select and appoint, a fifth member who shall not be a city commissioner or county
commissioner, but who shall be a permanent resident and elector of Dade County, and who shall
work or own a business in Dade County. Vacancies in the membership of the Board shall be filled
in the manner set forth above.
(2) The ex officio members shall serve until such time as the Board is dissolved or
until such time as they are removed for cause by a vote of the City Commission or the County
Board or no longer holds elected office, as the case may be, provided that an ex officio member
may only be removed by the Commission that appointed said member. The member appointed by
the ex officio members may be removed with or with out cause by majority vote of the ex officio
members.
(3) At all meetings of the Board, the presence in person of a majority of the total
membership of the Board shall constitute a quorum for the transaction of business, and each
Board member shall have one (1) vote on every issue submitted to a vote of the Board. The act of
a majority of the Board present at a meeting at which a quorum is present shall be the act of the
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Board. The members of the Board shall make and adopt bylaws and rules and regulations for the
Board's governance.
(4) The Board shall hold regular meetings and may hold such other meetings as it
deems necessary. Meetings of the Board shall be public, and written minutes of the proceedings
thereof shall be maintained.
Section 6.4 Powers and Functions of the Board. Upon the timely appointment of all
five members of the Board in accordance with the provisions of Section 6.3 hereof, the Board
shalt have the power to perform the following functions relating to the Phase I Non Port Facilities
and, if applicable, the Phase II Non -Port Facilities:
(1) To review the planning and design and Development Program for the Non -Port
Facilities and recommend changes thereto or approval thereof, as the case may be, in accordance
with the specific provisions of Article S of this Agreement.
(2) To employ and to compensate such personnel, consultants, and technical assistants
as it shall deem necessary to exercise the powers provided in this Section 6.4, provided, however,
that the Board shall not incur expenses or liabilities, or cause the County to incur expenses or
liabilities, pursuant to this subsection or otherwise in the aggregate of more than $200,000 (for
both Phase I and Phase II) without prior approval of the County Board.
i
(3) To receive and use such technical assistance as shall be from time to time made
available for its use by the County or the City.
(4) To -prepare a Request for Qualifications (RFQ), for the purpose of engaging the
Developers to undertake the development of the Non -Port Facilities which shall be submitted to
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the (County Board for ratification and issuance. Such RFQ must comply with all applicable County
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ordinances, resolutions, and administrative orders. The County Board may authorize the issuance
of the RFQ, deny the issuance of the RFQ, or in the alternative, may make recommendations to
the Board for modification of the RFQ.
(5) To rank and select the Developer based upon the Developer's credentials and
references, operating skills, access to capital, success of similar projects of comparable magnitude,
proposed minority participation and other criteria set forth by the Board, subject to the final
approval of the County Board.
(6) To negotiate an agreement or agreements for the development of the Non -Port
Facilities and recommend such agreement(s) to the County Board for ratification and final
approval.
(7) Once the Developer is selected and approved, to work with the Developer in order
to finalize the Development Program for the Non -Port Facilities. The Board shall have the power
to approve the Development Program for the Non -Port Facilities provided that such approval may
not be unreasonably withheld, delayed or conditioned.
(8) To approve the final construction budget for the Non -Port Facilities and to
reallocate budget line items if the estimated construction budget with respect to the Non -Port
Facilities exceeds the Project Funds and to approve any changes that materially alter the essential
character and components of the approved Development Program, provided that such approval
may not be unreasonably withheld, delayed, or conditioned.
(9) To undertake or cause to be undertaken planning studies, program of uses and
improvements for Phase II.
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} (10) To exercise any other power necessary and incidental to the implementation of its
powers and duties, which have been expressly authorized herein, provided, however, that no term
or provision herein shall authorize the Board to incur any expenses and/or liabilities, or cause the
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County to incur expenses and/or liabilities, totaling in excess of,$200,000 (for both Phase I and
Phase 11) unless expressly authorized to do so by resolution of the County Board.
Section 6.5 Dissolution and Reinstatement. The Board shall be dissolved upon the
Substantial Completion of construction of Phase I of the Project. The City and the County hereby
agree to reinstitute the Board and appoint members thereto in the same manner set forth in
subsection 6.3 above (i) in the event that as a result of default or some other similar event which
causes a new or additional Developer to be selected in connection with Phase I; or (ii) in the event
that the County. exercises the Phase II Option for the Non -Port Facilities and elects to issue an
RFQ to seek a Phase II Developer; or (iii) in the event there is proposed by either the County or
the Developer a substantial modification or alteration of the Non -Port Facilities at any time after
Substantial Completion. In the event the Board is reinstituted pursuant to the conditions set forth
above, the Board shall have the same powers and duties provided for in this Article except that
the Board may not under any circumstances incur, or cause the County to incur, any expenses or
liabilities in excess of the limitations contained in Section 6.4(2) unless authorized to do so by
resolution of the County.
.ARTICLE 7
CONSIDERATION
Section 7.1 Initial Payment. As consideration for the City dedicating the Leased
Property during the term specified herein for the Project, the County shall pay the City a
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development fee in the sum of six million dollars ($6,000,000.00) in Dade County warrant or by
wire transfer on the Agreement Date.
Section 7.2 Rent. The County shall pay to the City as rent for the Leased Property the
following sums:
(a) Annual Base Rent. Commencing on the third anniversary of the Commencement
Date, Annual Base Rent in the amount of One Million Dollars ($1,000,000), provided, however,
that if the County exercises its Phase i Option, the Annual Base Rent shall increase to Two
Million Dollars ($2,000,000) commencing on the sixth anniversary of the Commencement Date,
and on each and every anniversary thereafter throughout the Initial Term. In the event there is a
Development Agreement for the Phase I Non -Port Facilities, the Annual Base Rent shall be
increased by One Million Dollars ($1,000,000) commencing on a pro rats basis in the Fiscal Year
that a Sublessee occupies any portion of the Non -Port Facilities and on each anniversary date of
the Commencement Date thereafter. However, if commencement of construction of Phase I of
the Project is delayed for reasons beyond the control of the County for a period of time in excess
of one (1) year from the Commencement Date, then the County may elect to pay the first Annual
Base Rent payment in equal annual installments over the next five years of Two Hundred
Thousand Dollars ($200,000) each if no Development Agreement is executed, and Four Hundred
Thousand Dollars ($400,000) each if a Development Agreement is executed within 12 months of
the Commencement Date, with the first payment of such installments to be payable twelve months
after the third anniversary of the Commencement Date. City hereby acknowledges that any delay
to commencement of construction of Phase I or Phase II of the Project caused by a delay in the
County receiving a necessary Permit or other required governmental approval, properly applied
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for by the County, shall be deemed a delay for reasons beyond the control of the County. The
deferral of payment of the first Annual Base Rent payment shall not delay the payment or due date
of any subsequent Annual payment due to the City.
Commencing two years after the Annual Base Rent is due for Phase I, the Annual Base
Rent shall increase annually by the lesser of the Consumer Price Index or three percent (3%) per
year. If the initial One Million Dollar ($1,000,000.00) Annual Base Rent is increased pursuant to
Article 7, any such increase shall escalate annually by the lesser of the Consumer Price Index or
three percent (3%) per year, commencing two years after such increase becomes due.
(b) Percentage Rent. In addition to the Annual Base Rent, commencing on the
April 1 st following the third (3rd) anniversary of the Commencement Date and on each and every
April 1st thereafter throughout the Initial Term, a percentage rent in an amount equal to twenty
percent (20%) of Net Net Revenues (the "Percentage Rent") for the preceding Fiscal Year. The
Percentage Rate shall be determined in the manner prescribed in Section 7.7. Prior to the City
receiving a Preferential Distribution in accordance with the succeeding subsection (c), the
Percentage Rent shall be an amount equal to twenty percent (20%) of all Net Net Revenues. In
the Fiscal Year in which the City is entitled to a Preferential Distribution in accordance with the
succeeding subsection (c), the Percentage Rent in that Fiscal Year and each Fiscal year thereafter
shall be equal to twenty percent (20%) of all Net Net Revenues in excess of one million dollars
($1,000,000).
(c) Preferential Distribution. Commencing on the April 1 st following the ninth
anniversary date of the Commencement Date and on each and every April I thereafter throughout
the Initial Term, or on the April Ist following the Commencement of Port Operations under Phase
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H of the Project and on each and every April I st thereafter throughout the initial Term, whichever
occurs first, the first One Million Dollars ($1,000,000) of Net Net Revenues for the preceding
Fiscal Year. Should the amount of Net Net Revenues in any given Fiscal Year bye less than One
Million Dollars ($1,000,000), the amount of such deficiency will neither carry over to the
following Fiscal Year nor in any other way constitute any form of indebtedness from the County
to the City. The Percentage Rate shall be determined in the manner prescribed in Section 7.7.
Section 7.3 Adjustment to Annual Base Rent As A Result of County Exercising
the Phase II Option. If the County (a) does -not exercise its Phase I Option, (b) exercises the
Phase II Option, and (c) no Development Agreement is executed for the Phase II Non -Port
Facilities, the Annual Base Rent shall be increased by One Million Dollars ($1,000,000),
commencing on the eighth anniversary date of the Commencement Date or upon the
Commencement of Port Operations under Phase II of the Project, or three (3) years after the date
on which the County exercises the Phase II Option whichever occurs first. In the event a
Development Agreement is executed for the Phase II Non -Port Facilities, the Annual Base Rent
shall be increased by an additional One Million Dollars ($1,000,000) commencing on a pro rats
basis in the Fiscal Year that a Sublessee occupies any portion of the Non -Port Facilities Revenues
from any Sublessee and on each Anniversary Date of the Commencement Date thereafter.
In the event the County exercises its Phase II Option and one or more Development
Agreements are executed for the Phase I and Phase II Non -Port Facilities, the Annual Base Rent
shall be Four Million Dollars ($4,000,000).
Section 7.4 Adjustment to Percentage Rent And Annual Base Rent As A Result of
Extension. Prior to the expiration date of the Initial Term, but no sooner than one year before
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the expiration of the Initial Term, an appraisal of the Leased Property shall be made according to
the following provisions to determine fair rental value, provided, the County wishes to preserve
its option to extend the term of this Agreement pursuant to Article 4 of thus Agreement.
(a) Appraisals shall be made by three (3) licensed real estate appraisers, each of which
(i) shall be a certified general appraiser certified by the state as qualified to issue appraisal reports
of any type of real property and (ii) shall have not less than 10 years' experience in managing and
appraising real estate. One appraiser shall be appointed by the County, one shall be appointed by
the City, and the third shall be appointed by the first two appraisers so appointed.
(b) After appointment, the three appraisers, shall proceed promptly to prepare an
appraisal of the Leased Property. The fair rental value determined by the appraisers shall be
binding and conclusive on the County and City. The appraisers shall use the income approach
based on Net Revenues to determine the fair rental value.
(c) The cost of all appraisals made pursuant to this Article shall be equally borne by
each Party.
Section 7.5 Address for Payments. The County shall pay, by mail or personal
delivery, all payments required by this Agreement to the City at City Hall, 3500 Pan American
Drive, Miami, FL 33133.
Section 7.6 Late Charges. The Annual Base Rent, Percentage Rent, and any other
monies payable to the City under this Agreement shall bear interest at the Prime Interest Rate
from and after the date when the funds shall become due and payable and until paid in full.
Section 7.7 Records. The County shall maintain proper books of record and accounts
separate from all other records and accounts of the Seaport Department, in which shall be made
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full and correct entries of all transactions relating to the Project. Not later than one hundred and
twenty (120) days after the close of each Fiscal Year, the County shall cause an annual audit of its
books, records and accounts for the preceding Fiscal Year to be made by an independent certified
public accountant. Within thirty (30) days after the Seaport Department receives audited financial
statements of the Project, the County shall deliver to the City a statement of its Net Net Revenues
for the preceding Fiscal Year signed and certified by a Certified Public Accountant, along with a
certificate from the County's finance director of the computation of Net Net Revenues, if any, and
payment of the Percentage Rent and/or Preferential Distribution which is due from the County to
the City for the preceding Fiscal Year, if applicable.
ARTICLE 8
POSSESSION AND CONSTRUCTION OF FACILITIES
Section 8.1 Delivery of Possession of the Property. The City shall deliver possession
of the Leased Property to the County upon the Agreement Date. In the event the County
exercises the Phase I Option, the City shall immediately thereafter deliver possession of the
Bicentennial Port Property to the County. In the event the County exercises the Phase H Option,
the City shall immediately thereafter deliver possession to the County the portion of the
Bicentennial Property upon which the Phase II Option has been exercised.
Section 8.2 Commencement and Completion of Improvements. Pursuant to proper
County building permits and in the manner provided by law and local ordinance, and pursuant to
the terms of this Agreement, the County shall construct and develop on the Leased Property, the
Project, which includes the Phase I Port Facilities, either the Phase I Non -Port Facilities or Phase
I Alternate Non -Port Facilities, as the case may be, and, if applicable, the Phase II Port Facilities,
Phase II Non -Port Facilities or Phase II Alternate Non -Port Facilities, as the case may be, referred
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to from time to time collectively as the "Improvements". The County agrees that it shall no later
than December 31, 1997 commence construction of the Phase I Port Facilities, and shall promptly
and diligently complete all the work pertaining to the Phase I Port Facilities by no later than
December 31, 1999, unless subject to Unavoidable Delays. Construction of the Phase I Alternate
Non -Port Facilities, if applicable, other than the Pedestrian Bridge described in Section 5.2(b)iv,
shall commence no later than and shall be completed no later than
unless subject to Unavoidable Delays. Construction of the Pedestrian Bridge described in Section
5.2(b)iv, if applicable, shall be completed by December 31, 1999, unless subject to Unavoidable
Delays or unless a Developer Agreement exists prior to December 31, 1999.
If the County exercises the Phase II Option, pursuant to Article 18 of this Agreement, the
Phase II Port Facilities and, if applicable, the Phase II Non -Port Facilities, shall be constructed in
accordance with the Concept Plans, as agreed to herein. Construction of the Phase II Port
Facilities shall commence no later than twelve (12) months after the County's Phase II Option is
exercised and shall be completed within four (4) years therefrom, unless subject to Unavoidable
Delays..
Section 8.3 Project Costs. The County shall pay or cause to be paid all Project Costs
subject to the funding of such Project Costs in accordance with the provisions of Subsections 5.5
and 5.7 of this Agreement. The Parties acknowledge that construction costs cannot be fixed due
to the lack of control of the parties over the cost of labor, materials and equipment or over
competitive bidding, and market conditions, and, accordingly, the exact amounts of the estimated
construction costs for development of the Non -Port Facilities or the Alternate Non -Port Facilities
may change once final plans and designs for the Non -Port Facilities or the Alternate Non -Port
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Facilities have been prepared for, and approved by, the Board. in the event the final construction
cost estimates for such final plans and designs exceed the applicable Project Funds, the County
shall not be responsible for such excess without the prior approval of the County Board.
Section 8.4 Manner of Construction of Improvements. The construction of the
Improvements on the Leased Property shall be in accordance with all applicable federal, state and
local laws, ordinances, rules, regulations, and other applicable legal requirements and the Concept
Plans, the Preliminary Plans and Construction Documents, as herein defined, which shall be
approved in the manner set forth below.
Section 8.5 Resign, Concept Plans and Preliminary Drawings. All improvements
for the Port Facilities shall be designed by the County or its agents in a manner which is consistent
with the Concept Plans (hereinafter referred to as the "Design"). The Design shall achieve an
integrated site development with the Non -Port Facilities which attempts to maximize the flow of
visitors through the Non -Port Facilities. The City acknowledges that prior to the execution of this
Agreement, the County has submitted to the City, and the City has already approved, the Concept
Plans for the construction of the Project. The County and the Developer will prepare preliminary
drawings that will depict the size and locations of all the structures and the features for the design
of the Non -Port Facilities.
Section 8.7 Review and Approval of Preliminary Plans. The County shall submit
Preliminary Plans to the Maritime Park Board for review and approval as follows:
(a) Port Facilities. Notwithstanding any term or provision herein to the contrary, the
City's sole right of review and approval of the Port Facilities is the right to approve the Concept
Plans. The Maritime Park Board has no right to review the Port Facilities.
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(b) Non -Port Facilities. The County in coordination with the Developer shall submit
the Preliminary Plans to the Board for written approval. Upon receipt of each set of Preliminary
Plans representing a certain stage of construction, the Board shall review same and shall promptly
(but in any event within fifteen [15] calendar days after such receipt) give the County written
notice of its approval or disapproval setting forth in detail each of its reasons for any disapproval.
The Board's right to disapprove the Preliminary Plans submitted shall be limited to matters
depicted in the Preliminary Plans which do not conform substantially to the design concept
previously approved in the Development Agreement or previously approved Preliminary Plans for
other stages of the Project or new elements not presented in the Development Agreement or
matters which are violations of applicable governmental statutes, ordinances, codes, plans, laws or
regulations. Additionally, to the extent not inconsistent with preceding sentence, the Board may
require reasonable and proper design changes that do not materially alter the Development
Agreement, or the previously approved Preliminary Plans or the construction budget.
If no written response is delivered to the County within fifteen (15) calendar days after
submission of such Preliminary Plans, or within five (5) calendar days of any resubmission thereof,
they shall be deemed approved, except that no violation of applicable governmental statutes,
ordinances, codes, plans, laws or regulations, shall be deemed waived thereby. In the event of a
disapproval, the County shall, within a reasonable time from the date the County receives the
notice of such disapproval resubmit such Preliminary Plans to the Board, altered to satisfy the
reasonable and proper grounds given for disapproval. Any resubmission shall be subject to review
and approval by the Board in accordance with the procedure hereinabove provided until same
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shall be approved by the Board. The City and the County shall in good faith attempt to resolve
any disputes concerning the Preliminary Plans.
Section 8.8 Review and Approval of Construction Plans. Construction Plans shall
consist of final working drawings and specifications including, without limitation, the following
information: definitive architectural drawings; definitive foundation and structural drawings;
definitive electrical and mechanical drawings; final specifications, landscaping; and graphics.
(a) Phase I Port Facilities. The final Construction Plans shall be submitted to the
County's Building and Zoning Department for final construction permitting, with a notice and
copy of such submittal to the City Manager. The City Manager may review the Construction
Plans for compatibility with the Concept Plans only. The City Manager shall have thirty (30) days
from receipt of the Construction Plans in which to provide the County with written comments
concerning the compatibility of the Phase I Port Facilities' Construction Plans with the previously
approved Concept Plans. The County shall address all reasonable comments of the City Manager
with respect to compatibility and shall resubmit the plans, if necessary. If applicable, the City
Manager shall have an additional thirty (30) days to respond. If the City Manager does not
respond timely, the plans will be deemed approved. The City and the County shall in good faith
attempt to resolve any disputes concerning the compatibility of the Construction Plans with the
previously approved Concept Plans.
(b) Phase I Non -Port or Alternate Non -Port Facilities. After approval of
Preliminary Plans for the Non -Port or Alternate Non -Port Facilities, the County or the Developer,
as the case may be, shall submit to the Board, two sets of Non -Port Facilities' Construction Plans
when the Plans are 10% complete, 50% complete and 90% complete. The plans must also include
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proposed tenant improvements which materially impact the aesthetics of the exteriors, including
signage, landscaping and lighting. In addition, for the Phase I City Park the plans must include all
site 'development, landscape architecture, signage, lighting and other amenities.
Upon receipt thereof, the Board shall review same and.shall promptly (but in any event
within fifteen [15] days after such receipt), give the County, or the Developer, as the case may be,
notice of its written approval or disapproval, setting forth in detail its reasons for any disapproval.
The Board's rights to disapprove the Construction Plans submitted shall be limited to matters
depicted in the Construction Plans which do not conform substantially to the approved
Preliminary Plans or previously approved Construction Plans for other stages of the Project or are
new Non -Port Facility elements not presented in the approved Preliminary Plans or are violations
of governmental statutes, ordinances, codes, plans or regulations. If no response from the Board
is delivered to the County or the Developer within fifteen (15) days after the submission of such
Construction Plans, or within five (5) calendar days of any resubmission thereof as hereinafter
provided, they shall be deemed approved, except that no violations of applicable laws, statutes,
ordinances, codes, or regulations shall be deemed waived thereby. In the event of a disapproval,
the County, or the Developer(s), shall, within a reasonable time from the date of its receipt of the
notice of such disapproval, resubmit the Construction Plans for that stage to the Board altered to
satisfy the grounds given for disapproval. The Board's determination of what constitutes matters
that do not conform substantially to the approved Preliminary Plans or previously approved
Construction Plans shall be final and conclusive. Any resubmission shall be subject to review and
approved by the Board, the County or the Developer shall submit them to County's Building and
Zoning Department, with notice and copies to the City Manager, for final construction permitting.
Section 8.9 Performance and Payment Bonds. The County shall require and procure
from the contractor or contractors undertaking any part of the construction and equipping of the
Leased Property, performance and payment bonds in connection with each of the contracts. The
County shall also require from such contractor or contractors, waivers or releases of all liens or
rights of lien for labor and materials furnished in the construction and equipping of the Leased
Property.
Section 8.10 Insurance. The County shall require every such contractor to furnish
insurance protecting the City and the County and their respective commissioners, officers, agents,
and employee, as their interests may appear, against any claim for personal injuries, death claims,
and property damage that may be asserted because of the construction and equipping, the
insurance to be of that character and in those amounts as may be determined by the County
Manager.
Section 8.11 Conveyance by the County to the City. Upon the proper termination of
this Agreement, whether by passage of time or otherwise, the County, in consideration of the
granting of this Agreement by the City, grants and conveys unto the City the Port Facilities and
the Non -Port Facilities including all Improvements, including buildings, structures and related
amenities such as sidewalks, landscaping, curbs, driveways, bridges, docks, terminals, tunnels and
fixtures, as well as.all apparatus and equipment, trade fixtures or machinery necessary for the
complete and comfortable use of the buildings and other structures, excluding any property,
equipment, or machinery of Sublessees or other third parties and further excluding any equipment
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primarily used for port operations, such as gangways, conveyors, check in counters, signage, and
computers. Notwithstanding the foregoing, in the event this Agreement is terminated while bonds
issued to finance Project Costs are outstanding, such conveyance is subject, to any leasehold
mortgage or financing documents, including any provisions in such documents which allows a
trustee, receiver, or lender to manage and operate the Project in order to preserve Revenues.
Further, notwithstanding any provision herein to the contrary, no item or provision hereof shall be
construed as authorizing the City, during the term hereof or otherwise, to use or operate, or to
allow third parties to use or operate, any of the Port or Non -Port Facilities as a Port.
Section 8.12 City Property to Remain Free of Liens. The County shall have no
power or right to and shall not in any way encumber the City's fee simple interest in the Leased
Property. If any mechanics' liens shall at any time be filed against the Leased Property, the County
shall promptly take and diligently pursue a cause of action to have the same discharged or to
contest in good faith the amount or validity thereof and if unsuccessful in such contest, to have
the same discharged. Upon the County's failure to do so, the City, in addition to any other right or
remedy that it. may have, may take such action as may be reasonably necessary to protect its
interest, and the County shall be responsible for any and all costs incurred by the City in
connection with such action, including all reasonable legal fees, costs and expenses.
Section 8.13 Prompt Payment of Materialmen and Suppliers. The County shall make,
or cause -to be made, prompt payment of all money due and legally owing to all persons doing any
work, including subcontractors, or providing supplies and equipment in connection with the
development, construction, reconstruction or operation of the Project. Nothing in this section
i
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whether any amount claimed or alleged to be due and owing to any such person is legally due and
owing and the County may withhold payment of such amounts pending resolution of such dispute.
Section 8.14 Permits and Authorizations. The City shall diligently a;silt the County
with the platting of the FEC Property. The City shall diligently assist the County and its agents in
obtaining all permits, including, without limitation, assignment of development rights provided for
in the Downtown Area wide DRI, as well as all certificates and authorizations needed for the
construction of the Project. Any City permits or other formal government approvals, when
requested by the County from the City, will not be unreasonably withheld, delayed, or conditioned
by the City.
Section 8.15 County's Phase H Construction Obligations. In the event that the County
elects to exercise the Phase II Option, the County shall construct and develop the Phase H Port
Facilities and Non -Port Facilities (if applicable) in accordance with the provisions of this Article.
ARTICLE 9
MAINTENANCE, REPAIRS AND IMPROVEMENTS
Section 9.1 Repairs and Maintenance of Port Facilities and Non -Port Facilities.
The County shall throughout the Agreement Term, maintain in good, clean and orderly condition
and repair the Leased Property and all Improvements thereon including the Port Facilities and the
Non -Port Facilities. The County shall promptly make to the Non -Port Facilities and the Port
Facilities all necessary repairs, renewals and replacements, interior and exterior, structural and non
structural, whether made necessary or caused by fire or other cause or by ordinary wear and tear.
All repairs, renewals and replacements shall be of good quality sufficient for the proper
maintenance and operation of the Non -Port Facilities and the Port Facilities and shall be
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constructed and installed in compliance with all applicable building codes. Nothing contained in
this Agreement shall impose on the City the obligation to make any repairs or expend any monies
for the maintenance of the Leased Property or the renewal, replacement, of rep* of the Non -port
Facilities or the Port Facilities, The City shall be responsible, at the City's sole cost and expense,
for any maintenance, repairs, security or other costs resulting from or made necessary by the
City's use of the City Park for Special Events, as defined in Section 18 hereof, scheduled by the
City or its agents.
Section 9.2 Alteration of Non -Port Facilities. The County shall not matte or permit
to be made any alteration of, addition to, or change in, the Non -Port Facilities, nor demolish all or
any part of the Non -Port Facilities, that materially changes or substantially alters the character of
the Project' without the prior consent of the City Manager, which consent shall not be
unreasonably withheld, conditioned, or delayed. In requesting such consent the County shall
comply with all applicable laws and ordinances, and shall submit to the City Manager detailed
plans and specifications of the proposed work and an explanation of the need and reasons for it.
The City shall notify the County and the Developer, if applicable, of its approval or objections, as
the case may be, as promptly as possible after receiving the information, but not later than thirty
(30) days from receipt thereof.
ARTICLE 10
USE OF LEASED PROPERTY
Section 10.1 County's Right to Sublease, Grant Licenses and Grant Air Rights For
the Non -port Facilities. The County has the right to sublease all or any part of the Non -Port
Facilities, including the granting of licenses and air rights over any portion of the Non -Port
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Facilities, in a manner which is consistent with this Agreement and subject to the City Manager's
prior written consent, which consent shall not be unreasonably withheld or delayed, provided,
however, no approval of the City Manager is required if the Sublease is for, ten t4ousand square
feet (10,000) or less of retail space within the Specialty Attractions.
Section 10.2 County's Right to Sublease and Grant Licenses at the Port Facilities.
Without the consent of the City, the County may enter into Subleases and grant licenses for the
use of portions of the Port Facilities for purposes which are consistent with the operating of the
Port Facilities as a public port for maritime vessels. The County may also grant air rights over any
portion of the Port Facilities in a manner consistent with this Agreement for the Non -Port
Facilities provided that the Subleases are approved by the City Manager which consent shall not
be unreasonably withheld, conditioned, or delayed.
Section 10.3 Sublessees Right to Maintain Possession. The City agrees that any
rights it may have to reenter and take possession of the Leased Property shall be subordinate to
the rights of any Sublessee to continue peacefully in possession under any and all Subleases,
provided that the Sublessee is not in default of any of the terms and conditions of its Sublease.
The City further agrees that upon requests from Sublessees, it will grant such assurances to such
Sublessees as may be requested of their continued right to occupy the Leased Property pursuant
to the terms of their Subleases so long as they agree to attorn to the City and remain in
compliance with such terms, and provided further that any such Subleases do not extend beyond
the expiration of the term of this Agreement and provided further that any Sublessee requesting
such assurances of non -disturbance reimburses the City for any and all legal expenses incurred in
connection with the review and approval of such request.
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Section 10.4 Right to Mortgage Subleasehold. Sublessees shall have the right from
time to time to mortgage and otherwise encumber, with the prior approval of the County their
rights under their Sublease, in whole or in part, by a Leasehold Mortgage. ,The County shall
provide the City with a copy of all Subleasehold Mortgages. There shall be no subordination of
the City's fee simple interest in the Leased Property to the lien of the Leasehold Mortgage or
relating financing nor shall the City be required to join in such financing. No leasehold Mortgage
may impose any lien upon the City's fee simple interest in the Leased Property. The County and
City agree that any remedy for a default by a Sublessee under the terms of a financing shall be
limited to the appointment of a receivership or the assumption of the Sublessees obligations by the
Subleasehold Mortgagee or a replacement entity selected by the Subleasehold Mortgagee.
Section 10.5 Compliance by County and the City. Throughout the term of this
Agreement, the Parties shall promptly comply, with all federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations, and ordinances including all Environmental
Laws affecting all or any portion of the Leased Property including its uses. Additionally, the
County shall require all Sublessees and licensees to comply, with all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations, and ordinances
including all Environmental Laws affecting the Leased Property or any part thereof, or the use
thereof. The County will discharge any and all obligations incurred by it or cause any Sublessees
to discharge any and all obligations incurred by them, which give rise to any liens on the Leased
Property, it being understood and agreed that the County and any Sublessees shall have the right
to withhold any payment so long as they are in good faith disputing liability for or the amount of
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such liens, provided any contest of liability or amount operates as a stay of all sale, entry,
foreclosure, or other collection proceedings in regard to such obligations.
Section 10.6 Contest by County. The County and any of its Sublessees shall have the
right to contest the validity or application of any statutes, laws, rules, orders, regulation, or
ordinance by appropriate legal proceedings diligently conducted in good faith, in the name of
County or, where appropriate, such Sublessees. City hereby agrees to execute and deliver any
necessary papers, affidavits, forms or other such documents necessary for the County or any
Sublessee to contest the validity or application of any such statutes, laws, rules, orders,
regulation, or ordinance.
Section 10.7 Devote the Leased Property to Uses Specified in This Agreement. The
County and any of its Sublessees or licensees shall restrict the use of the Leased Property to those
uses specified in this Agreement and allowed by Applicable Laws and ordinances.
Section 10.8 Gaming. In the event that gaming is legalized or authorized within the
State of Florida or Dade County and the City of Miami, it is hereby specifically agreed that the
Leased Property may be used for such purposes pursuant to licensing from the appropriate
governmental authorities. If the Leased Property is used for gaming activities, the City shall be
entitled to receive additional consideration in an amount which shall be negotiated by the Parties
based on the revenues received by the County from such gaming operation. The City shall not
receive additional consideration for any revenues received from any gaming vessels for wharfage,
dockage fees or other published port tariff, exclusive of any extraordinary tariff imposed solely on
"ganging operations".
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Section 10.9 Estoppel Certificates from City. Upon request of the County or any
Subleasehold Mortgagee of Sublessee, the City agrees, within ten (10) days after such request, to
give such requesting party an estoppel certificate stating therein that the Cpunty�or Sublessee is
not in default, that this Agreement or Sublease is in full force and effect, and that all conditions for
effectiveness of this Agreement or Sublease are satisfied and that this Agreement has not been
modified, or otherwise to specify which of the foregoing is not correct and to what extent.
Section 10.10 Waiver of Landlord Lien. In order to enable the County and any
Sublessee to. secure financing for the purpose of fixtures, equipment, and other personalty to be
located on or in the Leased Property whether by Security Agreement and Financing Statement,
Chattel Mortgage or other form of security instrument, the City hereby does and will from time to
time, upon request, execute and deliver an acknowledgment that it has waived its "landlord's" or
other statutory or common law liens securing payment of rent or performance of the County's
other covenants under this Agreement.
Section 10.11 Notice to Landlord of Leasehold Mortgage. An executed counterpart or
a certified true copy of each Subleasehold Mortgage shall be delivered to the City together with
written notice specifying the name and address of such Subleasehold Mortgagees to which notices
shall be sent. For the benefit of any such Subleasehold Mortgagee who shall become entitled to
notice as provided in Subsection 10.12 below, the City agrees, subject to all the voluntary
surrender terms of this Agreement, not to accept a voluntary surrender, termination or
modification of this Agreement at any time while such Subleasehold Mortgage shall remain a lien
on the County's or Sublessee's leasehold estate. It is further understood and agreed that any such
Subleasehold Mortgage will not be bound by any modifications of this Agreement unless such
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modification is made with the prior written consent of such Subleasehold Mortgagee and no sale
or transfer of the Leased Property or any portion thereof to the County shall terminate this
Agreement by merger or otherwise so long as the lien of the Subleasehold,Mortgage remains
undischarged. The foregoing is not meant to prohibit a sale of the fee to the County.
Section 10.12 Notices to Subleasehold Mortgagee(s). No notice of the County's
default shall be deemed to have been given by the City to any Sublessee unless and until a copy
has been given to the Subleasehold Mortgagee, if any, provided that such Sublessee Mortgagee
shall have notified the City of its name, address and its interest in the Leased Property prior to the
City's issuance of such notice. The County irrevocablv directs that the Citv acceot and the Citv
agrees to accept, performance and compliance by any such Subleasehold Mortgagee or Sublessee
of and with any of the terms of this Agreement with the same force and effect as though kept,
observed or performed by the County, but the City shall not be obligated to accept such
performance and compliance if, at any such time, the City shall not be furnished with evidence
reasonably satisfactory to the City of the interest in this Agreement claimed by the party tendering
such performance and compliance. Nothing contained herein shall be construed as imposing any
obligation upon any such Subleasehold Mortgagee or Sublessee to so perform or comply on
behalf of the County.
ARTICLE 11
INSURANCE AND INDEMNIFICATION
Section 11.1 Indemnification. The City shall indemnify and save the County, its
officers, employees, Sublessees, licensees and agents harmless from any and all claims, liability,
losses or damages and causes of action, to the extent arising out of performance or
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non-performance of this Agreement by the City, its employees, agents, contractors and
subcontractors. The City shall pay all claims and losses in connection therewith, and shall defend
all suits, in the name of the County where applicable, including appellate proceedings, and shall
pay all costs, judgments and attorneys fees. However, nothing herein shall be deemed to
indemnify the County for any liability or claims arising out of the negligence, performance or lack
of performance of the County or its officers, employees, Sublessees, licensees or agents.
The County shall indemnify and save the City, its officers, employees, lessees, licensees
and agents harmless from any and all claims, liability, losses or damages and causes of action, to
the extent arising out of performance or non-performance of this Agreement by the County, its
employees, agents, contractors and subcontractors. County shall pay all claims and losses in
connection therewith, and shall defend all suits, in the name of the County where applicable,
including appellate proceedings and shall pay all costs, judgments and attorneys fees. However,
nothing herein shall be deemed to indemnify the City for any liability or claims arising out of the
negligence, performance or lack of performance of the City or its officers, employees, Sublessees,
licensees or agents.
Section 11.2 Insurance.
(a) Property Insurance. The County shall insure any improvements or structures
located on the subleased premises against all losses in the same manner and to the same extent
that it insures other property owned by the County. Notwithstanding the foregoing, the County
shall have no obligation to insure any portion of the Non -Port Facilities, except as the County may
agree to in any Sublease.
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(b) Liability Insurance. The City recognizes that the County has an ongoing self
insurance program for Public Liability, Automobile Liability and Workers Compensation in
compliance with and subject to the limitations of Section 768.28, Florida Statutgs.
Section 11.3 Insurance Proceeds. In the event the County receives insurance proceeds
in excess of the damages incurred, the excess insurance proceeds shall be used first in accordance
with any applicable bond provisions and in the absence of such provisions, by the County for any
lawful purpose.
ARTICLE 12
DAMAGE OR DESTRUCTION OF LEASED PROPERTY
Section 12.1 Definitions. The phrase "Completely Destroyed" shall be construed to
mean (a) the destruction of the safe, tenantable use or occupancy of the Port Facilities and the
Non -Port Facilities under this Agreement, or (b) damage to the extent of fifty percent (50%) or
more of the Non -Port Facilities and the Port Facilities.
Section 12.2 Bond Requirements. In the event the County finances the Port Facilities
and/or the Non -Port or Alternate Non -Port Facilities, as the case may be, with bonds that are
backed by a pledge of the revenues of the Seaport Department and until such bonds and any
refunding bonds are no longer outstanding, the provisions pertaining to damage and/or
destruction of Port property which will include Port Facilities and Non -Port or Alternate
Non -Port Facilities, as the case may be, set forth in the bond ordinance or indenture which
authorized the bonds shall prevail and take priority over the provisions of this Article to the extent
there is any conflict.
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Section 12.3 County's Duty to Restore Port Facilities and Non -Port Facilities and
Alternate Non -Port Facilities. If, at any time during the Agreement Term the Port Facilities
and/or the Non -Port or Alternate Non -Port Facilities, or any of its parts shell be partially damaged
or destroyed by fire or other casualty, the County covenants that, if the cost of renewing,
replacing, or reconstructing the damaged or destroyed property, as determined by the lowest
qualified bidder, shall not exceed the proceeds of insurance and other moneys available for such
purpose, it shall promptly commence and diligently proceed with the renewal, replacement, or
reconstruction of the damaged or destroyed property to the same value, conditions and character
which existed immediately prior to such damage or destruction, subject to such changes or
alterations as the City may approve upon the request of the County. If the cost of such renewing,
replacing, or reconstruction exceeds the proceeds of insurance and other moneys available for
such purpose, then in that event, the County shall within six (6) months after this damage or
destruction and soon as reasonably practicable, at its sole cost and expense, or using such
financing, including using such funds obtained from financing backed by Revenues, as may be
approved by the City (but using along with the County's funds insurance proceeds available for
that purpose) repair, alter, restore, replace or rebuild to the same value, conditions and character
l which existed immediately prior to such damage or destruction, subject to such changes or
alterations as the City may approve in conformity with the provisions of this Agreement and
modern construction techniques and methods. Subject to the City Commission's approval, and any
rights of approval which any of the County's Sublessees may have, the County may construct
Improvements which are larger, smaller or different in use and represent the highest and best use
of the Leased Property: The County agrees that it will use its reasonable efforts to ensure that the
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Port Facilities or any of its parts does not remain damaged such that it interferes with the
operation of, or the access to, the Non -Port Facilities.
Section 12.4 Termination of Lease In The Event of Complete Destruction. In the
event that the Port Facilities and/or the Non -Port or Alternate Non -Port Facilities are Completely
Destroyed, the County may elect not to restore the same. In such event the County shall have the
right to terminate this Agreement and its obligations under this Agreement by giving written
notice to City within sixty (60) days after such Complete Destruction. In the event of such
termination the County shall cause to have removed from the Leased Property any and all debris
and rubbish and unless otherwise directed by the City shall demolish any structures remaining
upon the Leased Property so as to return possession of the Leased Property in a clean and safe
condition. In the event the County elects not to terminate this Agreement, the County shall within
(36) thirty six months after the Complete Destruction, and as much sooner as is reasonably
possible, at the County's sole expense or using such financing, including using such funds obtained
from financing backed by Revenues, as may be approved by the City (but using along with the
County's own funds insurance proceeds and other moneys available for that purpose) replace,
renew and reconstruct the Port Facilities and the Non -Port or Alternate Non -Port Facilities with
Improvements of the same value, conditions and character which existed immediately prior to
such damage or destruction, subject to such changes or alterations as the City may approve in
conformity with the provisions of this Agreement and modern construction techniques and
methods. Subject to the City Commission's approval, and any rights of approval which a any of
the County's Sublessees may have, the County may construct Improvements which are larger,
smaller or different in use and represent the highest and best use of the Leased Property. The
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necessary to give the defaulting party a reasonable opportunity to cure, not to exceed one year
from notice of such default.
Section 14.2 Remedies in Invent of Default. For an Event of Default On the part of the
City, which occurs prior to the third anniversary of the Commencement Date, the County may, at
its sole discretion, terminate this Agreement without any liability to the County.
For an Event of Default by the County, which occurs prior to the third anniversary of the
Commencement Date, the City may, in its sole discretion, terminate this Agreement without any
liability to the County other than the City's right to retain any or all of the Initial Payment received
from the County. The City agrees that any lender or Sublessee of the County shall have the right
to cure a default by the County. For any Event of Default by the County or the City occurring
after the third anniversary of the Commencement Date the parties shall have the right to pursue
any or all of the following remedies:
(i) the right and option to terminate this Agreement and all its obligations hereunder
by giving notice of such election to the Party in -default, whereupon this Agreement shall
terminate as of the date of such notice (subject, however, to the rights of any Sublessee);
(ii) the right to a writ of mandamus, injunction or other similar relief, available to it
under Florida law.
(iii) the right to maintain any and all actions at law or suits in equity or other proper
proceedings to obtain damages resulting from such default.
Section 14.3 Curative Period. No Event of Default, except a monetary Event of
Default as set forth in Section 14.1 (a) hereof, shall occur until any applicable curative period has
lapsed without the act or breach complained of in the notice of default being cured.
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Section 14.4 Force Majeure. Either party hereto shall be excused from performing any
of its respective obligations, warranties, or undertakings hereunder for so long as the performance
of such obligations are prevented or significantly delayed, hindered, or ret4rded Oy act of God,
war (declared or undeclared), invasion, insurrection, riot, lockout, labor disputes, strikes, flood,
fire, windstorm, hurricane, not within the reasonable control of the respective party, if such party
hereto gives written notice of such delay or hindrance to the other party within forty five (45)
calendar days of the occurrence of such event.
Section 14.5 Waivers to Be in Writing. The receipt of Annual Base Rent or
Percentage Rent or any other payment of money due or required under this Agreement by the
City, with knowledge of any breach of this Agreement by the County or of any default on the part
of the County in the observance or performance of any conditions, covenants or requirements of
this Agreement, shall not be deemed to be a waiver of any provision of this Agreement unless
agreed to and authorized in writing by the City Manager. The receipt by the City of any Annual
Base Rent or Percentage Rent or any other sum of money or any other consideration paid by the
County after the termination, in any manner, of the Term demised, shall not reinstate, continue or
extend the term demised, unless so agreed to in writing and signed by the County and the City.
Section 14.6 Obligations, Rights and Remedies Cumulative. The rights and remedies
of the Parties to this Agreement, whether provided by law or by this Agreement, shall be
cumulative, and the exercise by either party of any one or more of such remedies shall not
preclude the exercise by it, at the same or different times, of any other such remedies for the same
default or breach or of any of its remedies for any other default or breach by the other party.
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Section 14.7 Rights of Sublessees. If the City shall have given notice to any Sublessee,
as required by this Agreement, such Sublessee shall have, and be subrogated to, any and all rights
of County with respect to the curing of any such Event of Default but shaU also have the right to
extend the period of time for curing of any such Event of Default for an additional period of
ninety (90) days from the date contained in the notice given pursuant to Article 10 of this
Agreement, or in the case of an Event of Default which cannot be cured within said ninety (90)
day period, for such additional period as, with all due diligence and in good faith, is necessary to
cure the Event of Default.
Section 14.8 Rights and Limitations of City After Termination Following County
Default. At any time or from time to time after the termination, in any manner, of this Agreement
the City may relet the Port Facilities or any part thereof, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the balance of the term of
this Agreement) and on such conditions (which may include concessions or free rent) as the City,
in its sole discretion, may determine and may collect and receive the rents therefor.
Notwithstanding the foregoing, the City shall not permit its agents, assigns, employees or any
third party to use or operate, the Leased Property, including the Port Facilities as a public or
private port facility without the prior approval and consent of the Board of County
Commissioners as provided in Section 2-11.6 of the Metropolitan Dade County Code. The
County hereby agrees that the City may utilize the Leased Property for the following maritime
purposes:
(a) A public or commercial marina for small pleasure crafts and
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(b) For docking and operating dinner boats not exceeding one hundred and fifty feet
(150) in length and eight feet (8) draught, except as may be permitted by the Seaport Department.
Section 14.9 Surrender of Property. Upon the expiration of the Temp, or upon the
proper termination of this Agreement at the option of the City as a result of an Event of Default
by the County, the County will at once without process of law, peaceably surrender possession of
the Leased Property and the Port Facilities and the Non -Port Facilities to the City and remove all
its personal property from it, subject to the Section 8.11 of this Agreement, provided that the
foregoing shall not be construed as in any way limiting the County from exercising any rights,
defenses, or remedies it has hereunder, at law, equity, or otherwise.
ARTICLE 15
CONDEMNATION
Section 15.1 Total Taking. If at anytime during the Agreement Term the whole of the
Leased Property shall be taken for any public or quasi -public use under any statute or by right of
eminent domain, or by private purchase in lieu thereof, then this Lease, on the earlier of (i) the
date that title shall be taken, or (ii) the date the condemning authority takes possession thereof,
shall automatically terminate, and shall be of no further force, and the County shall be released
from all obligations set forth in this Lease, except for the payment of rent or other monies which
have accrued and are due to the City. Subject to any obligations to bondholders under the
applicable ordinance or indenture, all compensation awarded or paid upon such a total taking of
the Leased Property shall belong to the County except for any compensation attributable to the
value of the land which shall belong to the City.
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Section 15.2 Partial Taking. If any part of the Leased Property shall be so taken as to
render the remainder thereof purposes for which the Leased Property was leased, then the City
and the County shall each have the right to terminate this Lease, on given within ninety (90) thirty
(30) days notice to the other days after the date of such taking. Subject to any obligations to
bondholders under the applicable ordinance or indenture all compensation awarded or paid upon
such a partial taking of the Leased Property shall be divided as provided in Subsection 15.1
above. If any part of the Leased Property shall be so taken and this Lease shall not terminate or be
terminated under the provisions above, then the Annual Base Rent shall be equitably apportioned
according to the area so taken, and the County shall restore the remaining portion of the Leased
Property to the extent necessary to render it reasonably suitable for the purposes for which it was
ARTICLE 16
RENEWAL AND REPLACEMENT FUND
Section 16.1 Renewal and Replacement Fund. To the extent required by the
financing documents for Phase I and/or Phase II and subject to any other applicable bond
documents, there shall be created and designated a Maritime Park Project Renewal and
Replacement Fund (the "Renewal and Replacement Fund"), to be established by the County. The
County shall deposit annually, an amount determined by the consulting engineers employed by the
Seaport Department. Only such cash deposits to the Renewal and Replacement Fund shall be
treated as a component of Net Net Revenues, per Article 7 herein. Expenditures from the
Renewal and Replacement Fund shall not be included in the determination of Net Net Revenues
Iherein. Funds held for the credit of the Renewal and Replacement Fund shall be disbursed with
respect to the Maritime Park Project to pay the cost of unusual or extraordinary maintenance and
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repairs, the cost of acquiring, installing or replacing equipment and acquiring and constructing
additions and any engineering, legal and administrative expenses related to the foregoing. Any
earnings to the credit of the Renewal and Replacement Fund shall remain in the Renewal and
Replacement Fund, and be used each year as a reduction of the required deposit recommended by
the consulting engineer for such Fiscal Year.
ARTICLE 17
ENVIRONMENTAL
Section 17.1 Environmental Warranty of County, The County warrants and
represents that it will not knowingly or unlawfully use or employ the Leased Property, or any of
the facilities thereon to handle, transport, store, treat, or dispose of any hazardous wastes or
substances, on the Leased Property, excluding any such wastes or substances existing on the
Leased Property prior to the Agreement Date and further excluding any such wastes or
substances that may migrate onto the Leased Property from adjoining land or water after the
Agreement Date. The County warrants and represents that it will not knowingly conduct any
activity on the Leased Property in violation of any Applicable Environmental Laws and that it will
require that all activities on or relating to the Leased Property be conducted in full compliance
with all Environmental Laws and all terms, conditions and requirements of any and all permits,
licenses, consents, approvals, and authorizations of any federal, state, or local regulatory agencies
or authorities.
Section 17.2 Environmental Warranty of City. The City warrants and represents that
it will not knowingly or unlawfully use or employ the Leased Property or the Bicentennial
Property, or any of the facilities thereon to handle, transport, store, treat, or dispose of any
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hazardous wastes or substances, on the Leased Property or Bicentennial Property, excluding any
such wastes or substances existing on the Leased Property or Bicentennial Property prior to the
Agreement Date. The City warrants and represents that it has disclosed to,the County all
information, in the City's possession, custody, or control relating to environmental contamination
at, on, or under the Leased Property and the Bicentennial Property, including the presence of any
hazardous wastes or substances, on any portion of the Leased Property or the Bicentennial
Property. The City warrants and represents that it will not knowingly conduct any activity on the
Leased Property or the Bicentennial Property in violation of any applicable Environmental Laws
and that any activity on or relating to the Leased Property or the Bicentennial Property will be
conducted in full compliance with all Environmental Laws and all terms, conditions and
requirements of any and all permits, licenses, consents, approvals, and authorizations of any
federal, state, or local regulatory agencies or authorities, and that it will insure that no activities
take place in areas surrounding or in proximity to the Leased Property or the Bicentennial
Property that may result in environmental contamination or hazardous waste being deposited on,
or migrating onto, the Leased Property or the Bicentennial Property.
Section 17.3 Allocation of Liability for Existing Contamination on the Leased
Property. The Parties agree that prior to the execution of this Agreement, the County has
performed a Phase I environmental audit of the Leased Property and the Bicentennial Property.
The County shall cause to be performed a Phase II audit of the FEC Property prior to
commencement of construction of Phase I. In the event the County exercises the Phase I and/or
the Phase II Option, a Phase II audit shall be performed on Phase II prior to commencement of
construction
of Phase II. The Phase II audit(s) will be performed to determine whether the Leased
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Property is in compliance with all applicable Environmental Laws and will evaluate the extent, if
any, to which hazardous or toxic substances, pollutants or contaminants have been or are being
released, discharged, emitted, or otherwise disposed of into the environment in violation of
federal, state, or local laws, regulations, ordinances or other requirements. In the event that the
County determines, as a result of the Phase II audit(s), that the Leased Property is not in
compliance with the applicable Environmental Laws or that contaminants have been or are being
released, discharged, emitted or otherwise disposed of into the environment (the "Existing
Contamination"), the City and County, subject to the provisions of subsection 17.4 below, hereby
agree to undertake the necessary remedial action required on the Leased Property by all federal,
state, local regulatory agencies or authorities.
Section 17.4 Allocation of Financial Responsibility for Cleanup of Existing
Contamination. The Parties hereby agree that the County shall be responsible for undertaking
any and all cleanup required on the Leased Property for Existing Contamination, subject to the
limitations, conditions, and reimbursement provisions contained herein.. For purposes of this
Article, Existing Contamination cleanup costs shall include the amount of funds actually expended
by the County or its authorized agents or contractors, after the Agreement date, to remove,
transport, dispose and/or otherwise remediate Existing Contamination from the Leased Property,
including, without limitation, (i) all direct and indirect construction costs, (ii) all soft costs
associated with such cleanup or remediation, including, without limitation, consulting or legal
fees, design fees, environmental audit fees, remediation studies, etc., (iii) all costs associated with
the removal, transportation, disposal, storage, incineration, dumping, and/or monitoring of the
Existing Contamination, and costs of required monitoring all or portions of the Leased Property
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for signs of contamination, and (iv) civil penalties arising from such Existing Contamination if
imposed against City and/or County after the Agreement Date, but excluding any criminal
penalties, fines, or sanctions arising from or relating to the Existing Contamination, (hereafter
"Cleanup Costs"). Notwithstanding any term or provision herein to the contrary, the City shall
be solely responsible for all costs relating to or arising from the Existing Contamination other than
the Cleanup Costs. The Cleanup Costs for Phase I of the Leased Property shall be paid as
follows:
(i) The City shall pay the initial Cleanup Costs up to an amount of two million dollars
($2,000,000) for Phase I. Such payments shall be made by the City in the form of Annual Base
Rent abatement, of up to one million dollars ($1,000,000) per year to be so abated and collected
by the County from the subsequent Annual Base Rent payments due to the City, under Section
7.2(a) hereof, after expenditure of such funds by the County until the amount of abated Annual
Base Rent equals the amount of expended Phase I Cleanup Costs up to $2 million.
(ii) If the Phase I Cleanup Costs exceed the two million dollars ($2,000,000) paid by
the City as provided above, the County shall be responsible for the payment of the remaining
Phase I Cleanup Costs up to a maximum of two million dollars ($2,000,000) and such
expenditures by the County shall be considered as Project Costs.
(iii) To the extent the Phase I Cleanup Costs exceed $4 million, the County shall be
responsible for fifty percent of any excess and such expenditures by the County shall be
considered as Project Costs. The City shall be responsible for the other fifty percent of Phase I
Cleanup Costs in excess of $4 million (the City's "Phase I Portion") and such expenditures by the
City shall initially be paid by the County, provided all such advance County payments shall be
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treated as Project Costs. The County shall be reimbursed by the City in the form of a deduction
from any Percentage Rent due, or to become due, to the City under Section 7.2(b) hereof until all
such advanced County payments have been fully reimbursed.
The Cleanup Costs for Phase II of the Leased Property shall be paid as follows for
Phase 11:
(i) The City shall pay the initial Phase I1 Cleanup Costs in an amount up to two
million ($2,000,000) dollars. Such payment shall be made by the City in the form of Annual Base
Rent abatement, of up to one million dollars ($1,000,000) per year to be so abated and collected
by the County from the subsequent Annual Base Rent payments due to the City under Section
7.2(a) hereof after expenditure of such funds by the County..
(ii) If the Phase II Cleanup Costs exceed the two million dollars ($2,000,000) paid by
the City as provided above, the County shall be responsible for the payment of up to an additional
two million dollars ($2,000,000) of such costs and such expenditures by the County shall be
treated as Project Costs.
(iii) The County shall be responsible for fifty percent (50%) of any amount in excess of
four million dollars ($4,000,000) for Phase II Cleanup Costs and such expenditures by the County
shall be considered as Project Costs. The City shall be responsible for the other fifty percent
! (50%) of Phase II Cleanup Costs in excess of $4 million (the "City's Phase II Portion") and such
1
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expenditure by the City shall initially be paid by the County, provided that all such advanced
County payments shall be treated as Project Costs. The City shall promptly reimburse the
County for all of such advanced payments in the form of abatement of Annual Base Rent due, or
to become due, to the City by County under Section 7.2(a) hereof, provided such abatement shall
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not exceed fifty percent (50%) in any given lease year, Such abatement of the County's Annual
Base Rent shall continue until the amount of abated Annual Base Rent equals the amount of the
County's advance payments of the City's Phase II Portion.
Section 17.5 County's Liability for Contamination During Term of Agreement.
The County agrees to undertake at the County's sole cost and expense, any necessary
environmental remediation resulting from a release of hazardous materials, hazardous waste or
hazardous substances occurring on or from the Leased Property in connection with any acts,
omissions, or activities of the County or the, County's agents, lessees or licensees during the Term
of this Agreement, excluding any environmental remediation necessitated by the acts, omissions,
or activities of the City, or the City's agents, employees, lessees or licensees.
Section 17.6 City's Liability for Contamination During Term of Agreement. The
City agrees to undertake at the City's sole cost and expense, any necessary environmental
remediation resulting from a release of hazardous materials, hazardous waste or hazardous
substances occurring on or from the Leased Property in connection with acts, omissions, or
activities of the City or the City's agents, or licensees during the Term of this Agreement,
excluding any remediation necessitated by the acts, omissions, or activities of the County, or the
County's agents, employees, lessees or licensees.
Section 17.7 Parry's Indemnity. If the County's or the City's warranties and
representations contained in Subsections 17.1 and 17.2, respectively, are false or breached, the
breaching party agrees to defend, indemnify, and hold harmless the non breaching party and its
agents, officials, and employees, to the fullest extent permitted by law, from and against any and
all claims, causes of action, or demands, in law or in equity, including but not limited to, all lien
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claims, administrative claims, claims for injunctive relief, claims of property damage, natural
resources damages, environmental response and clean up costs, fines, penalties, and expenses
(including without limitation, counsel fees, consultant fees and expert fees„ cost, and expenses
incurred in investigation and defending against the assertion of such liabilities), which may be
sustained, suffered or incurred by the said non breaching party, its agents, officials or employees
and that arise out of or related in any way to the Leased Property.
ARTICLE 18
PHASE II OPTION
Section 18.1 Option to Lease and Develop Bicentennial. In consideration for the
services provided by the County, as set forth in Subsection 18.5 hereof, the City hereby grants to
the County the Phase II Option: The County may exercise the Phase U Option at any time during
the Option Term, provided, however, that the County is not in default under the terms of this
Agreement and that it exercises the Phase II Option in accordance with the provisions set forth in
this Article. '
Section 18.2 Conditions Precedent to Exercise Phase H Option. In the event that the
County elects to exercise its Phase II Option with respect to the Bicentennial Property or the
Bicentennial Port Property, as the case may be, all of the following conditions must be satisfied on
or before the last day of the Phase II Option Term: (i) The County Board shall pass and adopt a
.Resolution expressing its intent to fund Project Funds for the Phase II Port Facilities or Phase II
Non -Port Facilities, as the case may be, provided, however, that no portion of such Project Funds
may be paid from County funds arising from ad valorem taxation unless allowed by law, and (ii)
the County must provide a construction schedule which provides for completion of the Phase II
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Improvements, as the case may be, within four (4) years of the County's exercising the Phase 11
Option.
Section 18.3 Exercise of the Phase 11 Option. The Phase II Option *hall be exercised
by written notice from the County to the City, certifying that all of the conditions described in
Section 18.2 above, have been satisfied (the "Option Notice"). The Option Notice must be
received by the City no later than the last day of the Phase I1 Option Term.
Section 18.4 Termination of Option. The County shall have the right to terminate the
Phase H Option at any time during the Phase II Option Term and in the event the County so
terminates then the County shall be released of any and all obligations set forth in Subsection
18.5. In the event that on the last day of the Phase II Option Term the County has not exercised
the Phase II Option in the manner described above, then all rights and obligations of the County
and the City with regard to the Phase II Option and the development of Phase I1 and all
restrictions set forth in this Article with regard to Phase II, shall terminate and be of no further
effect.
Section 18.5 Care and Maintenance of Bicentennial Property During the Phase H
Option Term. Except as provided in Section 18.6 with regard to Special Events, as defined
below, and Subsection 18.7 with regard to the City's option to develop all or a portion of the
Bicentennial Park Property, the County hereby agrees to maintain the Bicentennial Property
during tfie Phase II Option Term. The City hereby grants to the County and its employees and
agents the right to -enter upon the Bicentennial Property during the Phase II Option Term for
purposes of performing its maintenance duties and obligations set forth in this Section.
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Section 18.6 Bicentennial Property. Except as otherwise provided herein, the Parties
hereby agree that during the Phase II Option Term, the City retains all ownership rights of
possession, use and occupancy of the Bicentennial Park Property, including but got limited to, the
right to schedule, program and conduct specific recreational activities and events at the
Bicentennial Park Property (the "Special Events"), provided that such activities are consistent
with park purposes, and provided further that any City development or construction on such
property shall be subject to the restrictions and required approvals contained in Section 18.7
herein. The City, at City's sole cost and expense, shall be responsible for all costs incurred in
connection with such Special Events, including maintenance and security.
Section 18.7 City's Right to Develop or Improve the Bicentennial Park Property.
During the Phase II Option Term, the City reserves the right to develop and/or improve, at the
City's sole cost and expense, all or a portion of the Bicentennial Park Property, provided that: (i)
such development is approved by the County provided, however, that such approval shall not be
unreasonably withheld if the proposed City development is compatible and does not compete with
the Project, and (ii) such development or improvement does not encroach upon the Bicentennial
Port Property nor limit or functionally conflict with the use or development of the Phase II Port
Facilities or the Phase I Port Facilities or Phase I Non -Port Facilities, as the case may be. The
Parties hereby agree that if the City elects to develop all or a portion of the Bicentennial Park
Propertyduring the Phase II Option Term it shall immediately notify the County in writing of such
election and the Parties hereby agree to execute a Memorandum of Understanding canceling the
County's Phase II Option to the extent that it pertains to the Bicentennial Park Property to be
developed by the City. In such event, the County's Phase II Option shall pertain only to the
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Bicentennial Port Property and any portion of the Bicentermial Park Property not developed by
the City. Any revenues derived solely in connection with City's development of the Bicentennial
Park Property shall belong to and accrue solely to the City and shall not be considered Revenues
under this Agreement. In the event that prior to the County exercising the Phase II Option, the
City has elected to develop only a portion of the Bicentennial Park Property, the County may, at
the County's sole discretion, elect to develop either or both (i) the Bicentennial Port Property or
(ii) the Bicentennial Park Property not developed by the City.
Section 18.8 City Assurances of Development Compatibility. If during the .Phase II
Option Term the City exercises its rights and builds facilities on the Bicentennial Park Property
and if those facilities include such components that result in a reduction of revenues from the
Project, such as retail, specialty entertainment or commercial space, the City and the County
hereby agree to negotiate to reduce or abate County Annual Base Rent payments to compensate
the County for the resulting reduction in Project Revenues. Retail services ancillary to a principal
use undertaken by the City, which do not compete with the Non -Port Facilities shall not be
subject to such negotiations.
Section 18.9 Modification of Description of Leased Premises as a Result of
County's Exercise of the Phase I Option and/or Phase II Option. In the event that the
County successfully exercises the Phase I Option, the FEC Property and the Bicentennial Port
Property shall constitute the Leased Property. In the event that the County successfully exercises
the Phase II Option, the Bicentennial Property less any portion developed by the City, if
applicable, or the Bicentennial Port Property, as the case may be, and the FEC Property shall
constitute the Leased Property under this Agreement and the County's use and occupancy thereof
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shall be subject to all the same terms, covenants and conditions of this Agreement, and all
references to the Leased Property in the Agreement shall be deemed to include such property.
ARTICLE 19
ADDITIONAL RIGHTS AND OBLIGATIONS
Section 19.1 County's Responsibility For Existing City Bond Obligation. The
County hereby agrees that in the event its bond counsel determines, at any time, that the
development of the Project necessitates the retiring of the Existing City Bond Obligations, all
costs occasioned thereby shall be paid by the County and allocated as a Project Cost. In the event
that it is not necessary to redeem the City Bonds, payment of the debt service shall remain an
obligation of the City.
Section 19.2 County's Assumption of Certain Obligations and Liabilities. The
County hereby assumes and agrees to hold harmless the City with respect to all obligations and
liabilities of the City arising out of, or in connection with, the Grants of Easement from the City to
Miami -Dade Water and Sewer Authority, a copy of which has been delivered to and reviewed by
the County and is attached as Exhibit C and incorporated herein by reference thereto.
Section 19.3 County Access to Biscayne Boulevard. The Parties herein agree that
upon platting the FEC Property that the parcel depicted in Exhibit D will be dedicated to the
Florida Department of Transportation for the improvement of Biscayne Boulevard in accordance
with the Burle Marx Plan. In the event that such dedication does not occur, such parcel shall
remain a portion of the Leased Property.
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Section 19.4 City and County Obligations Pertaining to the Developer Selection
Process. The Parties hereby agree that the intent of this Agreement is to provide for the
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development of the Project, if practicable, and not just to facilitate the expansion of the Port of
Miami. Accordingly, a necessary and critical component of the development process is the
selection by the Board of a Developer and the final approval thereof by the County. The County
hereby agrees to proceed with the selection and approval of a Developer within a period of three
hundred and sixty five days (365) from the Agreement Date for Phase I and, if the County
exercises the Phase II Option, a period of three hundred and sixty five days (365) from the day the
Count} exercises such Phase II Option. In the event the Board fails to select and/or the County
fails to approve such Developer, or if there is no response to the solicitation within 365 days, the
City and County shall proceed as follows:
(a) The County shall notify the City within (30) days of terminating any attempts at
achieving a Development Agreement.
(b) The County shall proceed with the development of the Port Facilities and the
Alternate Non -Port Facilities, if applicable, in accordance with Section 5.2 of this Agreement, and
i in accordance with the following:
(i) The County will attempt in good faith to provide for the future inclusions
of the balance of the Non -Port Facilities, if practicable, at a time when conditions vary sufficiently
to allow for a Developer to be included;
(ii) The Board will only have authority to review the Alternate Non -Port
Facilities, as provided in Article 6 of this Agreement; and
(iii). The City and the County will jointly discuss and use reasonable efforts to
determine changes to the Developer selection process or changes necessary to the general nature
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and character of the Non -Port Facilities which could attract such developers and achieve a
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Development Agreement.
(c) In the event that the County fails to approve a contract with the Developer for the
Phase I Non -Port Facilities or the County fails to undertake such development as a Developer
within five (5) years of the Agreement Date, the City shall be entitled to develop the remaining
property and air rights planned for the Phase I Non -Port Facilities (the "Phase I Non -Port
Property"), provided that any such development by the City must first be approved by the County.
Such County approval shall not be unreasonably withheld and shall be based on the compatibility
of the City's proposed development with the Port Facilities and on whether such development will
interfere with the proper functioning and operation of the terminals, their access, utilities, parking,
aprons, gangways, security and other necessary activities. 'In the event the City's proposed Phase
I Non -Port Property development is approved by the County, the City and the County hereby
agree to modify the legal description of the Leased Property accordingly. Thereafter, any
revenues or expenses occurring solely as a result of any County -approved development by the
City, on the Phase I Non -Port Property, shall belong to the City. The County shall have no
obligation to maintain, secure or insure any portion of the City development on the Phase I
Non -Port Property.
(d) In the event that the County fails to approve a contract with the Developer for the
Phase IINon-Port Facilities, or the County fails to undertake such development as a Developer,
within the later of - (i) five (5) years from the County's exercise of the Phase II Option or (ii) the
expiration of the Phase II Option Term, the City shall be entitled to develop the remaining
property and air rights planned for the Phase II Non -Port Facilities (the "Phase II Non -Port
Property"), provided that any such development by the City must first be approved by the County
Such County approval shall not be unreasonably withheld and shall be based on the compatibility
of the City's proposed development with the Port Facilities and on whether such, development will
interfere with the proper functioning and operation of the terminals, their access, utilities, parking,
aprons, gangways, security and other necessary activities. In the event the City's proposed Phase
II Non -Port Property development is approved by the County, the City and the County hereby
agree to modify the legal description of the Leased Property accordingly. Thereafter, any
revenues or expenses occurring solely as a result of any County -approved development by the
City on such property shall belong to the City. The County shall have no obligation to- maintain,
secure, or insure any portion of the City development on the Phase II Non -Port Property.
Section 19.5 City Obligation Pertaining to Use of the Property. The City hereby
agrees that the development of the Project necessitates the removal of any restrictions, imposed
by City ordinance, or otherwise, pertaining to the sale or consumption of alcoholic beverages on
any portion of the Leased Property and accordingly, hereby agrees to do all things necessary to
remove any such restrictions within sixty days (60) of the Agreement Date. In the event the City
fails to comply with this obligation, the County may elect to terminate this Agreement and in such
event the City shall remit to the County the Development Fee plus any interest earned thereon
within thirty days of receipt of such termination notice.
ARTICLE 20
PHASE I OPTION
Section 20.1 Option to Expand FEC Property. In consideration for the development
of the Phase I Port Facilities, the City hereby grants to the County the Phase I Option to expand
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the 1FEC Property for the development of Phase I and Phase II in accordance with this Agreement
The County may exercise the Phase I Option at any time during the Phase I Option Term,
provided, however, that the County is not in default under the terms of this Agrpement.
Notwithstanding the foregoing, the County cannot commence construction of the Phase II
passenger terminals on the Bicentennial Port Property until the County exercises all or a portion
of the Phase II Option.
Section 20.2 Exercise of Phase I Option. The Phase I Option shall be exercised by
written notice from the County to the City (the "Phase I Option Notice"). The Phase I Option
Notice must be received by the City no later than the last day of the Phase I Option Term. The
timely exercise of such option will in no way impair or otherwise affect the County's remaining
Phase II Option to further develop Non -Port Facilities on the Biceitennial Park Property.
Similarly, the failure of the County to timely exercise the Phase I Option will in no way impair or
otherwise affect the County's Phase II Option.
ARTICLE 21
QUIET ENJOYMENT
County, upon paying all rents, revenues and other monies herein provided for and
performing in accordance with the terms, agreements, and provisions of this Agreement, shall
peaceably and quietly have, hold and enjoy the Leased Property during the Agreement Term
without interruption, disturbance or hindrance by the City or by anyone claiming by, through or
under the City.
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ARTICLE 22
FIRE STATION
The Parties hereby agree that a site containing one acre, depicted and legally described in
Exhibit F shall be allocated for the purposes of constructing a facility to accommodate the
relocation of Fire Station #l, which is presently located at 144 NE Sth Street, Miami, Florida, and
for berthing a fire boat, of not more than sixty feet (60) in length. The County shall contribute to
the actual construction costs of such fire station and fire boat berth in an amount not to exceed
Two Million Dollars ($2,000,000), which amount shall be treated as a Project Cost.
ARTICLE 23
GENERAL CONDITIONS
Section 23.1 Disclaimer. Other than those contained in this Agreement, the City makes
no other representations, warranties, or guarantees of any nature whatsoever concerning the
physical conditionof the Leased Property. This Agreement sets forth the entire agreement
between the parties, with respect to the Leased Property and in that regard, there are no promises
or understandings other than those stated in this Agreement. Except as otherwise provided herein,
it is agreed that City will not be responsible for any loss, damage or costs which may be incurred
by the County by reason of any physical condition of the Leased Property.
Section 23.2 Interpretation of the Agreement. This Agreement is the result of
negotiation between the parties and has been typed/printed by one party for the convenience of
both parties, and the parties covenant that this Agreement shall not be construed in favor of or
Section 23.3 Headings. Any headings preceding the text of any articles, paragraphs or
sections of this Lease shall be solely for convenience of reference and shall not constitute a part of
this ,agreement, nor shall they affect its meaning, construction or effect
Section 23.4 Binding Effect. The terms, conditions and covenants of this Agreement
shall inure to the benefit of and be binding upon its parties and their successors and permitted
assigns. This provision shall not constitute a waiver of any conditions prohibiting assignment or
subletting.
Section 23.5 Severability. If any provision of this Agreement or its application to either
party to this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall
not affect other provisions of this Agreement which can be given effect without the invalid
provision, and to this end, the provisions of this Agreement are severable:
Section 23.6 Inspections. The authorized employees and representatives of the City
have the right of access to the Leased Property at all reasonable times for the purposes of
inspection to determine compliance with the provisions of this Agreement. This right of inspection
shall impose no duty on the City to inspect and shall impart no liability upon the City should it not
make any such inspections.
Section 23.7 Payment of Taxes. The County shall pay or cause to be paid all taxes
lawfully assessed against the leasehold interests in the Leased Property or the improvements
thereon; provided, however, the County shall not be deemed to be in default of its obligations for
failure to pay such -taxes pending the outcome of any legal proceedings instituted to object to such
assessments or to otherwise determine or challenge the validity of such taxes or the failure to
collect such taxes. Failure to pay the taxes within 60 days of an adverse ultimate conclusion of
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such legal proceedings, including the exhaustion of any appellate rights, shall constitute a default,
provided that no default shall exist as long as the County is pursuing any available judicial or other
remedy in good faith. Further, for purposes of this Section 23.7, as to taxes assessed against the
leasehold interests in the Leased Property, which are owed by Sublessees, the County shall be
deemed to have satisfied its obligations under this Subsection upon the County including in its
Subleases a provision requiring Sublessees to pay all lawfully assessed taxes on their respective
leaseholds.
Section 23.8 No Waiver. There shall be no waiver of the right of either party to
demand strict performance of any of the provisions, terms and covenants of this Agreement nor
shall there be any waiver of any breach, default or nonperformance by either party, unless such
waiver is explicitly made in writing by the other party. Any previous waiver or course of dealing
shall not affect the right of either party to demand strict performance of the provisions, terms and
covenants of this Agreement with respect to any subsequent event or occurrence of any
subsequent breach, default or nonperformance hereof by the other party.
Section 23.9 Force Majeure. The terms and conditions of this Agreement shall be
subject to force majeure. Neither the City nor the County shall be considered in default in the
j performance of its obligations hereunder, if such performance is prevented or delayed because of
war, hostilities, revolution, civil commotion, strike, lockout, epidemic, fire, wind, flood or because
of any law, order, proclamation, regulation or ordinance of any government or of any subdivision
thereof or because. of any act of Clod or any other cause whether of similar or dissimilar nature
beyond the reasonable control of the party affected, provided that notice of such force majeure is
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given by the affected party, to the other within ten business days of receipt of actual knowledge of
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the delay or impairment of performance caused by such force majeure. Should one or both of the
parties be prevented from fulfilling their contractual obligations by a state of force majeure lasting
continuously for a period of six months, the parties shall consult with each othey regarding the
future implementation of this Agreement.
Section 23.10 Status of Title. The City hereby represents and warrants to the County
that it has clear, fee simple title to all of the FEC Property. The City further warrants to the
County that none of the purposes, development, and/or uses of the Leased Property contemplated
herein are prohibited or restricted by any existing City Charter provision, ordinance, resolution,
administrative order, rule, regulation, contract, lease, or any other City prohibition, restriction, or
authority. The City hereby covenants that after the date hereof, the City shall not permit any
matter, condition, or restriction to exist which would adversely affect the status of County's
leasehold interest in the FEC Property and the Bicentennial Property. Further, the City agrees and
covenants not to undertake any action during the term of this Agreement that would render its
title to the FEC Property or the Bicentennial Property unmarketable as of the Agreement Date.
Section 23.11 Access and Easements. The County shall have a right of access onto the
FEC Property and the Bicentennial Property above, across, or under all roadways, paths, railroad
rights -of --way, streets, roads, and City property which now or hereafter serve, cross, or adjoin any
portion of the FEC Property and the Bicentennial Property, including Biscayne Boulevard. The
City shall also secure a right of access in the form of a covenant running with the land across any
property dedicated to the Florida Department of Transportation for the Burle Marx Design Plan.
The City hereby covenants and grants to the County such further rights of -access and easements
as identified in Exhibit E attached hereto.
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Section 23.12 Entire Agreement. This Agreement contains the entire agreement
between the parties. No promise, representation, warranty or covenant not included in this
Agreement has been or is relied on by either parry. Any changes, modifications, additions or
amendments must be approved by the City Commission and the County's Board of County
Commissioners,
Section 23.13 Modifications and Amendments. This Agreement shall not be modified
or amended except in writing by the parties after approval from the City Board and the County
Board.
Section 23.14 No Assignment. The County and the City may not assign any of their
rights, title or interest in this Agreement without the express written permission of the other party,
provided that the foregoing shall not preclude the County from subleasing portions of the Leased
Property as otherwise provided herein.
Section 23.15 Notices. All Notices, consents and communications required or permitted
by this Agreement shall be in writing and transmitted by registered or certified mail, return receipt
requested, with Notice deemed to be given upon receipt, as follows:
If to the County:
Director of Seaport
Port of Miami
1015 North America Way
Miami, FL 33133
With a copy to:
County Manager
Stephen P. Clark Center
111 N.W. 1st Street, Suite 2910
77
95- 832
Dade County Attorney
Stephen P. Clary Center
I I I N.W. 1st Street, Suite 2810
Miami, FL 33128
If to the City:
City Manager
City of Miami
City lull
3500 Pan American Drive
Miami, Florida 33133
With a copy to:
City Attorney
300 Biscayne Boulevard Way
Miami, Florida 33131
Section 23.16 Survivability. Any term, condition, covenant or obligation which
expressly requires performance by a party subsequent to the expiration or termination, of this
Agreement shall remain enforceable against such party subsequent to such expiration or
termination.
Section 23.17 Severability. In the event any one or more of the provisions of this
Agreement shaU for any reason be held to be invalid or illegal, such invalidity or illegality shall not
affect any other provision of this Agreement but this Agreement shall be construed and enforced
as if such invalid or illegal provision has not been contained in this Agreement.
Section 23.18 Successors and Assigns. The provisions of this Agreement shall be
binding on and inure to the benefit of the parties, their successors, and permitted assigns.
Section 23.19 Additional Instruments. The parties shall execute and deliver any
instruments in writing necessary to carry out any agreement, term, or assurance in this Agreement
whenever occasion shall arise and request for such instruments shall be made, provided, however,
78
95- 832
that, where required, County execution of such instruments will be subject to the approval of the
County Board.
Section 23.20 Relationship of the Parties. Nothing contained in this Agreement shall
be deemed or construed to create between the parties a relationship of principal and agent or of
joint venture or of any other association.
Section 23.21 Consents and Approvals. Except as otherwise provided in this
Agreement, whenever the consent, approval, or satisfaction of either party is required hereunder,
as for example, when the exercise of any right by one party is subject to the other's approval,
consent, or satisfaction, such consent, approval, or satisfaction may not be unreasonably withheld,
delayed, or conditioned.
Section 23.22 Governing LawNenue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. All federal, state, county and local
laws, ordinances, rules and regulations that in any manner affect the items covered herein apply.
Venue for any action to enforce or construe any term or provision hereof, and for any action
arising from or relating to this Agreement, shall lie exclusively in Miami, Dade County, Florida.
Section 23.23 Limitation on County Obligations. Notwithstanding anything to the
contrary in this Agreement, any payment obligations of the County that arise under this
Agreement shall be limited to funds other than those derived from ad valorem taxation and legally
available for the payment of such obligations.
.�r: n�serr�ur
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95- 832
IN WITNESS, the City of Miami and Metropolitan Dade County have caused this Interlocal
Agreement to be executed on the date and year first above written.
ATTEST:
CITY OF MIAMI, A, MUNICIPAL
CORPORATION OF THE STATE OF
FLORIDA
Walter J. Foeman, City Clerk
Cesar H. Odin, City Manager
ATTEST:
METROPOLITAN DADE COUNTY, A
POLITICAL SUBDIVISION OF THE
STATE OF FLORIDA
Armando Vidal, P.E.
County Manager
APPROVED AS TO FORM AND
APPROVED AS TO LEGAL
CORRECTNESS
SUFFICIENCY
A. Quinn Jones III, City Attorney
Robert A. Ginsburg, County Attorney
95- 832
Exhibits Referenced in Maritime Park Interlocal Agreement
(In order of reference)
� y
Exhibit A Concept Plans
Sheet 1: Site plan showing both Phase I and Phase II parcels
Sheet 2: Phase I Laud Use Plm Overall Gtauad Level
Sheet 3: Phase I Land Use Plan. Overall Second Levd
Sheet 4: Phase I Land Use Plsn. Overall Third Level
Sheet 5: Phase I Land Use Plan. Overall Park Level
Sheet 6: Phase R L.atd Use Plan. Overall Ground Levd
Sheet 7: Phase [I Lad Use Plan, Overall Seoaud Level
Sheet 8: Phase H Land Use Plan. Overall Third Lewd
Sheet 9: Phase It Land Use Plan. Overst! Pack Ievd
Sheet 10: Phase II Land Una Plan. Port and N=43=t P&c ds
Exhibit B Legd descriptioas of FEC wd Bicentecmid Pack properties (to be pr*W" by City)
Exhibits C and D Agmemeuts for City to provide itmfightiag. rescue. fire W*ec dm satvioes, and law eWbroe meat
services (to be provided by City and County attocrteys)
Exhibit E Gratz of Easwieut 6vm the City to Mtiatui-Dade WASH
Exhibit F Legal description of parcel for dedication to FDOT for Bistrtyne Blvd. impmvemenes (if needed the
povel is depicted in F.zlaibit A)
EXHIBIT A, SHEET L
PHASE 1 & Z - CONCEPT SITE PLAN
PORT OF MIANH
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County agrees that it will utilize its reasonable efforts to ensure that the Port Facilities or any of
its parts to does not remain damaged such that it interferes with the operation of, or the access to,
the Non -Port or Alternate Non -Port Facilities.
Section 12.5 Abatement of Rent. The County shall be entitled to abatement,
allowance, reduction or suspension of the Annual Base Rent due the City under this Agreement in
proportion to the portion of the Leased Property affected, should part of, or all of, the Leased
Property become untenable for its intended use. Such abatement, reduction, or suspension of the
Annual Base Rent shall continue for the period of time necessary to reconstruct or repair the
portion of the Leased Property rendered untenable, but in no event shall such period of time be in
excess of three (3) years. In such event, the parties shall utilize whichever one of the following
methods of calculating rent abatement which produces the largest reduction of the Annual Base
X the Annual Base Rent
X the Annual Base Rent
Total Project Square Footage
Section 12.6 Disposition of Insurance Proceeds Upon Termination of Lease as a
Result of Complete Destruction. The Parties agree to the following provisions that shall survive
the termination of this Agreement and that shall be applicable in the event this Agreement is
terminated pursuant to the provisions of Section 12.4. All insurance monies shall be first applied
49
9 5 r 832
to pay the aggregate outstanding debt and the balance of such insurance monies shall be paid to
the County.
ARTICLE 13
MANAGEMENT, OPERATIONS AND DISPOSITION OF PORT
FACILITIES
Section 13.1 Management and Operations. The County shall, during the term of this
Agreement, exercise control over the management, operations, and functions of the Port
Facilities, including, without limitation, bulkheads, utilities, dredging, maritime terminals,
roadways and ancillary facilities, and the Parking Facilities, all in accordance with the provisions
of this Agreement.
Section 13.2 County Jurisdiction Upon the Leased Property. Pursuant to Section
125.015, Florida Statutes (1993), the County shall have exclusive jurisdiction over the Leased
Property, including, without limitation, jurisdiction over police services and building and zoning.
Notwithstanding the foregoing, the City and County mutually agree that in the event that neither
the County nor a Developer develops the Phase I Non -Port Property and/or the Phase II
Non -Port Property, as the case may be, and the City elects to develop either or both of such
Non -Port Properties,*the City and County shall renegotiate which party shall have responsibility to
provide further police services on the Non -Port Property(ies) developed, or to be developed, by
the City.-
Notwithstanding that the County has exclusive jurisdiction over the Leased Property, and
pursuant to Article I, Section 1.01(17) and Article V, Section 5.06 of the Home Rule Charter of
Metropolitan Dade County, the City, at its sole cost and expense, shall provide all necessary fire,
50
95- 832
z ,,
4
rescue, paramedic, and fire -inspection services to the FEC Property and Bicentennial Park,
including, without limitation, all improvements made thereto and all activities conducted thereon.
Dade County shall have exclusive
Section 13.3 Compliance With All Laws. The County shall operate Port Facilities, at
all times in accordance with all applicable laws and regulations.
Section 13.4 Transfer of Fort Facilities. In the event that the County ceases to operate
the Port Facilities, due to the early and proper termination of this Agreement, title to all Port
j Facilities shall vest in the City. In such event the County shall, at County's sole cost and expense,
retrofit the Port Facilities for Non -Maritime uses, provided that none of the costs of such
retrofitting shall be payable from any County funds arising from ad valorem taxation, and
provided further that the costs of such retrofitting shall not exceed Two Million Dollars
($2,000,000) at the end of the Initial Term, provided however, that the cost shall be adjusted in
the event this Agreement is terminated earlier as follows:
(a) Five Hundred Thousand Dollars ($500,000) for years one (1) through ten (10).
(b) Seven Hundred Fifty Thousand Dollars ($750,000) for years eleven (11) through
twenty (20).
(c) One Million Dollars ($1,000,000) for years twenty-one (21) through thirty (30).
(d) One Million Two Hundred Fifty Thousand Dollars ($1,250,000) for years thirty-one
(31) through forty (40).
(e) One Million Five Hundred Thousand Dollars ($1,500,000) for years forty-one (41)
through forty-four (44).
51
95- 832
Section 13.5 Limitation on Use of Port Facilities. Whenever title to the Port Facilities
is vested in the City, under no circumstances shall the City's employees, tenants, agents,
contractors, or assigns use or operate, or allow any third party to use or operatq, any of the Port
Facilities, as a public or private port facility without the prior -consent of the Board of County
Commissioners, as provided for in Section 2-11.6 of the Code of Metropolitan Dade County. The
prohibition contained in the preceding sentence shall survive both the expiration and/or
termination of this Agreement.
ARTICLE 14
DEFAULT
Section 14.1 Events of Default. Any one or more of the following shall constitute an
"Event of Default":
(a) The failure of the County to pay any installment of Annual Base Rent, Percentage
Rent, Preferential Distribution or any other payment due or required under this Agreement when
due and the continuance of the failure for a period of thirty (30) days after notice thereof in
writing from the City to the County.
(b) A breach by the City of any warranty set forth in this Agreement.
(c) The failure of the City or the County to perform any of the other covenants,
conditions and requirements of this Agreement, and the continuance of such failure for a period of
Ninety (90) days after notice thereof in writing, which notice shall specify the respects in which
the notifying party contends that the party being notified has failed to perform any of the
covenants, conditions and agreements, provided, however, if the failure to perform cannot be
cured in a practicable manner within ninety (90) days, the curative period shall be extended as
A:1113Br.SA"
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95- 832
EXHIBIT A. SHEET 3.
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CI`fY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM '
Tc Honorable Mayor and Members °A1 E November 30, 1995 FILE
of the City Commission
SUBJECT : Interlocal and Lease
Agreement with
FROM ; REFERENCES : Metropolitan Dade County -
Maritime Park Project
Joe Carollo Cesar H. Odio ENCLOSURES:
City Commissioner City Manager
RECOMMENDATION
It is respectfully recommended that the City Commission approve the attached resolution
authorizing the City Manager to execute the attached Interlocal and Lease Agreement
z with Metropolitan Dade County for the purpose of developing a Maritime Park Project, in
y substantially the attached form after final review and approval by the City Attorney and
after fulfillment of the following two conditions:
1) _ The City's conveyance of clear title to the proposed leased property by including
an executed amendment to the Triparty Agreement entered into by and between
the City, the County and Bayside Center Limited Partnership (the "Parties") dated
July 19, 1988, to facilitate the City's conveyance of the FEC Property leasehold to
the,County.free and clear of any leasehold interest by Bayside and to provide the
necessary easements in connection with the project.
2) The establishment, pursuant to the proper legal form, of the Maritime Park Board
described in Article Six of the attached Interlocal and Lease Agreement.
In June of 1993, the City began negotiations with Metropolitan Dade County to establish
a conceptual pre -development agreement for purposes of developing the FEC and
Bicentennial Park properties to expand the existing Port of Miami into the Maritime.Park
Project. On April 14, 1994, the City Commission adopted Resolution 94-261 authorizing
the City Manager to execute a pre -development agreement to facilitate the negotiation of
the attached Agreement. In November, 1994, using the pre -development agreement as a
basis, the City began negotiating the Interlocal and Lease Agreement with the County.
On Friday, November 17, 1995, the City concluded its negotiations with the County and
the attached Agreement details the terms and conditions for the development of the
Project.
A'
9►5- 8
,.r
The Maritime Park Project (the "Project") will consist of the redevelopment of the FEC
(Phase 1) and Bicentennial Park (Phase II) into a mixed use project that will include up to
four cruise ship terminals, specialty attractions/entertainment center, parking facilities
and an urban park. The project has the capacity for berthing five ships simultaneously, at
least four of which can be megaliner type vessels. The full project will ultimately be
designed to handle twelve additional cruise ships. These twelve ships could
accommodate approximately two million passengers per year.
The following are the main points of the Agreement:
LEASE TERM:
Forty-five year initial term with an option for three additional 15 year terms for a total of
ninety (90) years.
PROTECT DEVELOPMENT:
THE PROJECT WILL BE DIVIDED INTO TWO PHASES:
PHASE I* FEC PARCEL - Approximately 19 acres.
PHASE IA Port Facilities only - Two terminals, access roads, two berths,
and approximately 900 parking spaces (300 of which are
dedicated to port activities and the balance to serve non -port
purposes.)
PHASE IB Non -Port Facilities - Including landscaping, 3-5 acre botanical
garden, approximately 200,000 square- feet of specialty
attractions and a pedestrian bridge link to Bayside.
PHASE II* BICENTENNIAL PARCEL - Approximately 36 acres.
PHASE IIA Bicentennial parcel development will duplicate Phase IA, Port
Facilities only containing two terminals, access roads, two berths
and parking.
PHASE IIB Bicentennial Park Property - The Non -Port portion of. the
Bicentennial Parcel
The County has through the eighth anniversary of the Agreement
date, to exercise its option to develop Phase II. In consideration
for the option, the County agrees to maintain the Bicentennial
Parcel during the Phase II option period. The City retains the
right to develop outside the Maritime footprint. The County has
the right to approve any development by the City as to
compatibility with and non -competitiveness with the project.
2
95 - 832
w
i
96141.11)
PHASE I OPTION (a/k/a "The Combination Option"):
Within six months of execution of the Agreement, the County may exercise an option to
move the deep water slip approximately 400 feet northward, thereby expanding the FEC
property. The leased property would then encompass the expanded FEC Property and the
Bicentennial Port Property. The purpose of the expansion would be to accommodate an
additional megaliner at the Phase I port facilities abutting the eastern side of the FEC
property. In the event the County exercises this Phase I Option, the Phase II annual base
rental: payment would commence no later than 4 years after the completion of Phase I, or
on the anniversary of this agreement in the year 2003, whichever occurs first.
PHASE R OPTION TERM:
Within eight years of executing the Agreement, the County may exercise an option to
develop the Bicentennial Property. During this Phase II Option term, the City will retain
the right to develop the Bicentennial Park Property. In the event the County exercises the
Phase II Option for the Port Property only, the County will retain the right to exercise an
option to develop the Bicentennial Non -Port Property within the original Phase II Option
term.of eight, years. If the County elects to execute the Phase II Option within the eighth
year, the County will have an additional 365 days to search for and contract with a
developer for the Non -Port facilities.
CONSIDERA_TjON.
INITIAL PAYMENT
A six million dollar development fee will be paid to the City upon execution of the
Agreement and fulfillment of the following two conditions:
1) The City's conveyance of clear title to the proposed leased property by including
an executed amendment to the Agreement .entered into by and between the City,
the County and Bayside Center Limited Partnership (the "Parties") dated July 19,
1988, to facilitate the City's conveyance of the FEC Property leasehold to the
County free and clear of any leasehold interest by Bayside and to provide the
necessary easements in connection with the project.
2) The establishment, pursuant to the proper legal form, of the Maritime Park Board
described in Article Six of the attached Interlocal and Lease Agreement.
3
95- 832
,S
ANNUAL BASE RENT -
Annual Base rent will commence on the third anniversary of the Agreement Date.
Phase I A $1 million/year
Phase I B $1 mi lion/year
Total Phase I $2 million/year
Phase II A $1 million/year
Phase II B $1 million/vear
Total Phase 11 $2 million/year
Commencing two years after the first anniversary of base rental payment (the 5th year),
the payment will be adjusted annually by a CPI factor equal to the annual change in CPI
or three percent, whichever is less. If the County exercises any of the renewal extensions,
the base rent will be adjusted in line with the then existing property values pursuant to an
appraisal formula set forth in the agreement..
ADDITIONAL PAYMENTS -
PERCENTAGE NET -NET REVENUES - Net -Net Revenues are defined as project
revenues less operating expenses, debt service payments, and actual, cash contributions
to a'renewal and replacement fund. On the third anniversary of the commencement
date, the net -net revenues shall be divided between the County (80 percent) and the
City (20 percent).
PREFERENTIAL DISTRIBUTION - On the ninth anniversary of the commencement
date, or upon commencement of Phase II, the County pays to the City the first $1
million of any net -net revenues for the preceding fiscal year from the project before
calculation and distribution of the percentage net -net revenues.
PROTECT CONSTRUCTION COST:
If the County proceeds with full development of the project, the costs are as follows:
Phase I A Port Facilities $ 68 million*
Phase I B FEC Non -Port Facilities $ 56 million
Total $124 million
Phase II Bicentennial Port Facilities
Phase II Bicentennial Non -Port Facilities
Total
4
r _$
$ 69 million"
$ SS million
$124 million
95- 832
e
In the event that the County proceeds with the development of the Port Facilities only, the
project Casts are as follows:
Phase I A FEC Port Facilities $68 mullion**
Phase I E FEC Park Landscaping and
pedestrian bridge 9.6 million
Total $77.6 million
Phase II Bicentennial Port Facilities $69 million**
Phase II Bicentennial Park Landscaping $15 million
Total $84 million
**Estimates provided by the County, however, the Agreement only stipulates the
County's obligation to build the Port Facilities at an unspecified dollar amount.
If the City exercises its option to develop all or part of the Phase II non -port properties,
the County Phase II Bicentennial landscaping obligation shall be decreased
proportionately in accordance with the percentage of land taken by the City. In any
event, the construction. schedule shall adhere to the following:
Phase I- Commence Construction: December 31, 1997
Complete Construction: December 31, 1999
Phase II- Commence Construction: 12 Months after Phase II Option is Exercised
Complete Construction: Completed within 4 years of Phase II Option
Phase I Option:
Phase I- Commence Construction: December 31, 1997
Complete Construction: December 31, 1999
Phase II- Commence Construction: 30 days after completion of Phase I Port
Complete Construction: Completed within 4 years
MARITIME PARK BOARD:
The Maritime Park Board, through the County, will oversee the development of the Non -
Port facilities by securing a Developer. If no Developer is selected within the first 5
years after execution of this agreement, the undeveloped Non -Port acreage and air rights
revert to the City.
The gaik JOW will be created by County ordinance and will consist of 5
s, 2 County Commissioners and the 5th member will be
appointed by the other 4 appointed Commissioners. The County will provide the
Maritime Board with a total of $200,000 towards completion of their task of selecting a
developer.
5 ��
E aRQh MI NT"AL. ISSUES:
A Phase One Environmental Audit has been conducted on both the FEC and Bicentennial
Park Properties. That audit reveals that there may be environmental cleanup costs
associated with the Phase I project and Phase II project. The total cleanup cost is
unknown at this time. An estimate depends on the project design and a Second Phase
Environmental Audit.
The City and County will split the payments for any environmental penalties and cleanup
costs as follows:
Phase I First $2 million - City responsibility
Second $2 million County responsibility
Balance - costs divided half to the City and half to the
County; the City share will be a credit against the
percentage Net -Net Rent Payments
Phase II First $2 million - City responsibility
Second $2 million - County responsibility
Balance costs divided half to the City and half to the
County;
The County will advanceall payments. Except as noted above, the City's share will be
reimbursed to the: County as a credit against base rental payments. The Credit for Phase
11 payments of the City will not exceed half of the base rent in any year. All County
payments will be treated as a project cost. The County will be responsible for any portion
of the City's share of all cleanup costs which are not covered bythe net -net rental
payments over the life of the agreement.
TI TRISDICTION
Section 125.015, Florida Statutes, 1993, provides for the County to exercise jurisdiction
within the Project. The City and the County agree that the City will provide all fire,
rescue and fire inspection services to the Project. Law enforcement services will be
provided by the County.
FIRE STATION
The Project will include a site containing one acre for purposes of constructing a facility
to accommodate the relocation of the City of Miami Fire Station-fiJ = will
fund the construction of this facility at an amount not tq�,�
0
95- 832
i
'A
BOARD OF COUNTY COMM1551
METROPOLITAN DADE COUNTY- LORIDA
METRO -DARE CENTER
III N. W. FIRST STBt[T. SUIT! 260
ARTHUR E. TEELE, JR. MIAM1. FLORIDA 30121.1465
M"AIRPERMON [Safi 079 0424
FAX (lob) 373.1363
December 7, 1995
The Honorable Miller J. Dawkins
Chairperson
Overtown/Park West Redevelopment Agency
City of Miami
P.O. Box 330708 ' C"'. 400*
Miami, Florida 33233-0708 1!% a
Hand Delivery
Dear Chairperso wkinaw
We are enrrou(aged lay the new spirit of cooperation between the City and County
Governments. Clearly, the recent action by the City and County to approve an
interlocal agreement for the Bicentennial Park Property Is a monumental step towards
improving the economic development potentiAl of downtown Miami. For that we can all
be greatful. However, our job is not complete until both the east and west sides of
Biticaynu Boulevard are developed. We, of course, refer to Overtown.
For the past 18 months we have worked with you and the City Commission to establish
sn independent redevelopment authority in Overtown. We note that since July. 1995
the City Commission has convened as the Overtown/ Park West Community
Redevelopment Agency. As the entity responsible for the development of the
Overtown/Park West area, we strongly urge you to seize the opportunity to infuse
development activity in Overtown by "earmarking" fifty percent of the Bicentennial Dark
IpFiss payments directly to Overtown.
As you are aware, under the interlocal agreement Dade County will pay tho City $6
million upon execution of the lease. On the third anniversary date of the lease the
County will pay $2 million per year, The County development rights over these sites
Include an initial term of 45 years with three 15-year option periods. if fifty percent of
those payments are "earmarked" for the term of the agreement, but not less than 20
years; it could mean up to $75 million in development activity for the citizens of
Overtown, and as importantly a positive impact on the economic and social health of
our entire community.
95— 832
We can not ignoro tho ohasm of "haver" and "have note" on the east rind west side of
Biscayne Boulevard. We can not continue to say that we do not have the resources to
develop Overtown bOcause that is not true. The only yueslions that remain are: when
are we going to make the commitment to Overtown and its citizens? If not now, when?
If not now, why? If not now, how?
We are anxious to work with you on this important matter. Thank you for your
consideration.
95-- 832
b
ARTHUR R. TEELE, JR.
CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
METROPOLITAN DADE COUNTY-FLORIDA
METRO-DADE CENTER
111 N. W. FIRST STREET, SU1tE 230
MIAM1, FLORIDA 33128-1963
(305) 375-242♦
FAX (305) 375-1363
December 7, 1995
The Honorable Miller J. Dawkins
Chairperson
Overtown/Park West Redevelopment Agency
City of Miami
P.O. Box 330708
Miami, Florida 33233-0708
Hand Delivery
Dear Chairperson Dens:
We are encouraged by the new spirit of cooperation between the City and County
Governments. Clearly, the recent action by the City and County to approve an
interlocal agreement for the Bicentennial Park Property is a monumental step towards
improving the economic development potential of downtown Miami. For that we can all
be greatful. However, our job is not complete until both the east and west sides of
Biscayne Boulevard are developed. We, of course, refer to Overtown.
For the past 18 months we have worked with you and the City Commission to establish
an independent redevelopment authority in Overtown. We note that since July, 1995
the City Commission has convened as the Overtown/ Park West Community
Redevelopment Agency. As the entity responsible for the development of the
Overtown/Park West area, we strongly urge you to seize the opportunity to infuse
development activity in Overtown by "earmarking" fifty percent of the Bicentennial Park
lease payments directly to Overtown.
As you are aware, under the interlocal agreement Dade County will pay the City $6
million upon execution of the lease. On the third anniversary date of the lease the
County will pay $2 million per year. The County development rights over these sites
include an initial term of 45 years with three 15-year option periods. If fifty percent of
those payments are "earmarked" for the term of the agreement, but not less than 20
years, it could mean up to $90 million in development activity for the citizens of
Overtown, and as importantly a positive impact on the economic and social health of
our entire community.
Submitted into the public
recg, -'in connection with
item �-A on a_7&/%3_
Walter Foeman
City Clerk
ARTHUR R. TEELE, JR.
CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
METROPOLITAN DADE COUNTY-FLORIDA
METRO-DADE CENTER
111 N. W. FIRST STREET, SU1tE 230
MIAM1, FLORIDA 33128-1963
(305) 375-242♦
FAX (305) 375-1363
December 7, 1995
The Honorable Miller J. Dawkins
Chairperson
Overtown/Park West Redevelopment Agency
City of Miami
P.O. Box 330708
Miami, Florida 33233-0708
Hand Delivery
Dear Chairperson Dens:
We are encouraged by the new spirit of cooperation between the City and County
Governments. Clearly, the recent action by the City and County to approve an
interlocal agreement for the Bicentennial Park Property is a monumental step towards
improving the economic development potential of downtown Miami. For that we can all
be greatful. However, our job is not complete until both the east and west sides of
Biscayne Boulevard are developed. We, of course, refer to Overtown.
For the past 18 months we have worked with you and the City Commission to establish
an independent redevelopment authority in Overtown. We note that since July, 1995
the City Commission has convened as the Overtown/ Park West Community
Redevelopment Agency. As the entity responsible for the development of the
Overtown/Park West area, we strongly urge you to seize the opportunity to infuse
development activity in Overtown by "earmarking" fifty percent of the Bicentennial Park
lease payments directly to Overtown.
As you are aware, under the interlocal agreement Dade County will pay the City $6
million upon execution of the lease. On the third anniversary date of the lease the
County will pay $2 million per year. The County development rights over these sites
include an initial term of 45 years with three 15-year option periods. If fifty percent of
those payments are "earmarked" for the term of the agreement, but not less than 20
years, it could mean up to $90 million in development activity for the citizens of
Overtown, and as importantly a positive impact on the economic and social health of
our entire community.
Submitted into the public
recg, -'in connection with
item �-A on a_7&/%3_
Walter Foeman
City Clerk
We can not ignore the chasm of "haves" and "have nots" on the east and west side of
Biscayne Boulevard. We can not continue to say that we do not have the resources to
develop Overtown because that is not true. The only questions that remain are: when
are we going to make the commitment to Overtown and its citizens? If not now, when?
If not now, why? if not now, how?
We are anxious to work with you on this important matter. Thank you for your
consideration.