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HomeMy WebLinkAboutSubmittal-District 2-Memorandum of Law Ultra ContractMEMORANDUM OF LAW The Bayfront Park Management Trust acted in an ultra vires fashion by executing a contract purporting to permit the Ultra Music Festival to take place in Bayfront Park for five years without obtaining approval of the City of Miami Commission. The contract at issue, entitled the Bayfront Park Use Agreement dated March 6, 2014, between the Bayfront Park Management Trust and Event Entertainment Group, Inc. (the "Use Agreement"), is an unauthorized legal nullity because it was never approved by the City of Miami Commission as required by law. 1. The Purported Use Agreement is an Unauthorized Legal Nullity The purported Use Agreement was never approved by the City of Miami Commission. Therefore, the purported Use Agreement is void ab initio as an ultra vires act of the Bayfront Park Management Trust. A. Under City of Miami Code Ordinance Section 38-104, the Bayfront Park Management Trust Cannot Enter into a Binding Contract Without City of Miami Commission Approval As a matter of law, the Bayfront Park Management Trust cannot enter into a binding contract without obtaining approval of the City of Miami Commission. Specifically, City of Miami Code Ordinance Sec. 38-104 delegates only limited authority to the Bayfront Park Management Trust and requires that "[t]he trust shall have the power to do all things necessary to direct, manage and maintain Bayfront Park, subject at all times to city commission approval and any existing contractual obligations." Any purported ignorance of the law by Event Entertainment Group, Inc.'s is not an excuse for failure to comply with the law. Indeed, even the purported Use Agreement itself requires Event Entertainment Group, Inc, to comply with all applicable laws and ordinances. Therefore, the purported Use Agreement is an unauthorized legal nullity because it was never approved by the City of Miami Commission as required by law. See, Ramsey v. City of Kissimmee, 190 So. 474, 477 (Fla. 1939) ("Persons contracting with a municipality must, at their peril, inquire into the power of the municipality, and of its officers, to make the contract contemplated."). The purported Use Agreement is void ab initio and therefore unenforceable. Ramsey v. City of Kissimmee, 190 So. 474, 477 (Fla. 1939); Cook v. Navy Point, Inc., 88 So. 2d 532, 535 (Fla. 1956) ("it was ultra vires and therefore void because the city, in entering into the agreement, acted in an unauthorized manner."); Palm Beach County Health Care Dist. v. Everglades Memorial Hosp., Inc., 658 So. 2d 577, 581 (Fla. 4th DCA 1995) ("Agreements entered into by public bodies which fail to comply with pROf 1 Submitted into the public record in connection with n ' item DI.3 on 04/24/14 I��-UU 3�UaSv n,,lr l Tv�L- i�lst ck2 Iv mOra a coo-t-r& 4— City Clerk statutory requirements are void."); Town of Indian River v. Coll, 378 So. 2d 53, 55 (Fla. 4th DCA 1979) ("Mayor Miller failed to follow the proper procedural requirements outlined in a town ordinance dealing with employment contracts.... It seems to us that the plain wording of that ordinance nullifies the alleged contract entered into on behalf of the City by Mayor Miller without council approval. Nor do we believe there is any estoppel available to appellee because one who contracts with a municipality is bound to know the limitations of the City's contracting authority. If the contract is ultra vires then, absent some special estoppel, no liability accrues to the City."). B. Under Well -Established Practice, City Agencies Including the Bayfront Park Management Trust Cannot Enter into a Binding Contract Without City of Miami Commission Approval As a matter of well -established pattern and practice, the City of Miami and its agencies, including but not limited to the Bayfront Park Management Trust, cannot enter into a binding multi year contract without obtaining approval of the City of Miami Commission. See, e.g., Resolution R-08-0457, brought before the City Commission, on July 24, 2008, "authorizing the City manager and Bayfront Park Management Trust to execute an agreement in substantially the form attached, with Live Nation Worldwide, Inc. for purpose of managing and operating the Bayfront Part Amphitheatre." Similarly, on April 2, 2009, the City Commission passed Resolution R-09-0170 to allow Live Nation's contractor to perform work on the Bayfront Park Amphitheatre. The legal requirement for approval by the City Commission is not simply a ministerial requirement. See e.g., City of Boynton Beach v. Janots, 929 So. 2d 1099, 1102 (Fla. 4th DCA 2006) ("The requirement for approval by the city commission is not simply ministerial"). Rather, the City Commission's approval is a required condition precedent to the effectiveness of any contract. The Bayfront Park Management Trust simply could not legally bind the City of Miami absent approval by the City Commission, which was never obtained. The Bayfront Park Management Trust is without power to bind the City of Miami without abiding by its limited delegated authority, as set forth in City of Miami Code Ordinance Sec. 38-104 ("The trust shall have the power to do all things necessary to direct, manage and maintain Bayfront Park, subject at all times to city commission approval and any existing contractual obligations."). 2. Event Entertainment Group, Inc. Violated the Purported Use Agreement and said Agreement Must be Immediately Cancelled and Terminated Even assuming that the purported Use Agreement was authorized, which it was not, the purported Use Agreement must be cancelled and terminated as Event Entertainment Group, Inc. is in violation of the purported Use Agreement in numerous material ways. DRAFT 2 Submitted into the public record in connection with item DI.3 on 04/24/14 City Clerk The grant of the use privilege is expressly conditioned on Event Entertainment Group, Inc.'s compliance with "the terms and conditions set forth in this Agreement." See, Use Agreement, p. 1. Pursuant to Paragraph 5(e) of the purported Use Agreement, Event Entertainment Group, Inc. "accepts this Agreement and hereby acknowledges that [Event Entertainment Group, Inc.]'s strict compliance with all applicable federal, state and local laws, ordinances and regulations is a condition of this Agreement, and [Event Entertainment Group, Inc.], and any of its employees, agents or performers, shall comply therewith as the same presently exist and as they may be amended hereafter." Thus, an express condition of the purported Use Agreement is Event Entertainment Group, Inc.'s "strict compliance with all applicable federal, state and local laws, ordinances and regulations". Because Event Entertainment Group, Inc. violated numerous applicable Taws and ordinances, Event Entertainment Group, Inc. is in material breach of the purported Use Agreement. Paragraph 5(e) of the purported Use Agreement clearly states that "any uncured violations of any federal, state and local law shall subject [Event Entertainment Group, Inc.] to cancellation of this Agreement." Further, Paragraph 19 of the purported use Agreement provides in part that "in the event [Event Entertainment Group, Inc.] shall fail to comply with any material term and condition of the Agreement or shall fail to perform any of the material terms and conditions contained herein, then the Trust, at its sole option and in addition to all other rights and legal remedies available to it by law, ... may cancel and terminate this Agreement". Therefore, assuming for purposes of exercising the right of cancellation that the purported Use Agreement is a valid contract, which it is not, the purported Use Agreement must be immediately cancelled and terminated due to Event Entertainment Group, Inc.'s violations of the purported Use Agreement which cannot be cured. The violations of the purported Use Agreement by Event Entertainment Group, Inc. include but are not limited to, its violation of Paragraph 13 of the purported Use Agreement. Paragraph 13 requires that Event Entertainment Group, Inc. comply with requests of the Trust to provide extra fencing or security. Prior to the commencement of the event, police notified Event Entertainment Group, Inc. that extra fencing was necessary in a vulnerable section, yet Event Entertainment Group, Inc. did not provide adequate fencing. See, Chief of Police Manuel Orosa 3/31/2014 press conference. Event Entertainment Group, Inc.'s violation of the purported Use Agreement cannot be cured as the event is over and the damage due to Event Entertainment Group, Inc.'s violation is already done. The violations of the purported Use Agreement by Event Entertainment Group, Inc. also include but are not limited to, its violation of City of Miami Code Ordinance DRAFT 3 Submitted into the public record in connection with item DI.3 on 04/24/14 City Clerk Sec. 38-104 which requires City Commission approval in order for the Trust to have power to even enter into a contract. Event Entertainment Group, Inc.'s actions in pursuit of the unauthorized purported Use Agreement violate said Agreement which itself requires compliance with local ordinances. The violations of the purported Use Agreement by Event Entertainment Group, Inc. also include but are not limited to, its violation of City of Miami Code Ordinance Sec. 38-115(b) which provides that there shall be no permits for alcoholic beverages issued in connection with a musical event of the type which requires extraordinary security measures. Thus, no permit for alcoholic beverages was authorized or lawful. Therefore, Event Entertainment Group, Inc. violated Paragraph 5(c) of the purported Use Agreement under which it "represents and covenants that it will comply with all applicable laws, codes and ordinances". The violations of the purported Use Agreement by Event Entertainment Group, Inc. also include but are not limited to, its violation of City of Miami Code Ordinance Sec. 38-70(c) which governs the sale or dispensing of beer and/or wine for special events or programs in city parks (including Bayfront Park). Section 38-70(c) provides, "Unless approved by the city commission, there shall be no permits issued in connection with any musical event or program of the type which historically requires extraordinary security measures, based upon prudent police protection (commonly referred to as "rock concerts")." 04 �j;ry ��16 t1 f 4 iris: PUBLiC RECORD FOR 1 D1.3 ON DRAFT 4