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Submittal-Stephen Herbits-Letters, Memos, Reports
Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk April 27, 2016 Commissioner Keon Hardemon, Chairman Commissioner Wilfredo Gort Commissioner Ken Russell Commissioner Frank Carollo Commissioner Francis Suarez Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Hand Delivered Dear Commissioners: Your Commission has been the victim of a runaway, lawless Administration and Legal Department. Attached is the file which provides only part of one case as an example. There are many more. On Thursday, the Commission will consider CA.7, a request for outside attorney fees generated by the case attached. City Attorney Victoria Mendez has oft repeated her definition of her job as protecting the City Commission, to whom she reports, at all costs. BUT...the reality is that the City Attorney knowingly ignores the most important part of her job — preventing the City or even her office from committing violations of the City's Charter and ordinances, State law and even the State Constitution. Taking responsibility for following the law in the first place would reduce the amount of time, taxpayer funds, project delays, and dislocation to the public "defending" the City. Even worse is when the City Attorney's office itself knowingly, deliberately and without hesitation, lies to the Commission, misleads the Commission, withholds critical information from the Commission, and omits material facts from the Commission in its deliberations. Make no mistake. The Commission is the victim of a culture of an Administration which claims that "it makes policy," not recommends it (the words of the City Manager), and a Legal Department that tells the Commission that it must do such and such or be sued. It should never get to the point where the 1 S-FO n 44 bo1+S- L2,-1 , f11.er,os, P. S Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Commission is forced into an illegal action because of threats by its City Attorney. Yet this very result has occurred, repeatedly. Examples of all these wrongful actions are contained in the Flagstone Islands Garden case, some of which are attached. Some or all of the offenses in this case are repeated in cases involving Grove Bay, SkyRise, Miami World Center, Walmart and Parcel D on Watson Island. In the particular case of Flagstone, starting in 2010 under former Commissioner Sarnoff's guidance, the now 15-year old project has gone off the rails. For the past three years, citizen attempts have been made within appropriate governmental channels to set the record straight and correct the violations. For various reasons, though, the Miami -Dade "system" is failing throughout. • The Courts, 18 months after filing, are still pondering the City's defense that citizens don't have standing to challenge the City's violations of its City Charter, even when there is special injury. • The Ethics Commission, in the case before you, has ruled that there was "no probable cause" citing the issue as one of being a "legal" opinion, when it was misstated facts and withheld material facts that misled the Commission. The Ethics Commission has been requested to re -open the case, this time with the complainant present to counter the City Attorney's outside lawyer. • The State Attorney's office has been presented with multiple violations of the Public Records laws as well as violations of the Charter and other acts of misbehavior. The reputation for that office's reluctance to engage in investigations of public corruption of senior officials is common knowledge. The failure of all these routes of citizen redress and accountability have one thing in common: the merits of these claims the City have never been considered. Those failures alone are not the point. It is you the Commissioners, not just the public, who are the victims. You do not allocate sufficient resources to yourselves to act as a check and balance on your own government. The City Attorney's office is a monopoly, left unchallenged until decisions are set in stone, and the costs to the taxpayers and those wishing to challenge the city become unaffordable. 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk April 27, 2016 Commissioner Keon Hardemon, Chairman Commissioner Wilfredo Gort Commissioner Frank Carollo Commissioner Francis Suarez Note: Attached to the enclosed letter to you is a formal request to the Miami -Dade Commission on Ethics and Public Trust (COE) to reopen case 15-27 against Assistant City Attorney Robin Jones Jackson. We have deposited three other documents with the City Clerk's office for those that wish to review them: • The COE's investigative report • The COE Advocate's report to the Commission • The 200-page back up to the request to reopen the case, docu- menting errors in the testimony of Ms. Jackson to the COE and by the COE's staff. A full set of these documents has also been provided to Commissioner Russell's office as the District of record for both the Flagstone development and residence of two of the litigants in this case. If your office wishes a full set of these documents, please contact Stephen Herbits at 305-962-5552 or sherbits@gmail.com. Thank you. cc: Commissioner Ken Russell cc: Mayor Regalado, City Manager, City Attorney, City Clerk. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk This letter represents a formal request that you hold a special Information Calendar session of the Commission to explore these accusations by giving sufficient time to all those who believe you and the residents of this City have been wronged. Sincerely, Roger M. Craver 1000 Venetian Way #804 Miami, Florida 33139 Sharon Kirby Wynne 801 Venetian Way #506 Miami, Florida 33139 Stephen E. Herbits 246 NE 101 st Street Miami Shores, Florida 33138 (at the time of the City acts and filing of the civil complaint, a resident of 1000 Venetian Way, 1904 Miami, Florida 33139 Attached: Complaint to the Miami -Dade Commission on Ethics and Public Trust Recommendation of the Ethics Commission Advocate Response to the Ethics Commission 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk This letter represents a formal request that you hold a special Information Calendar session of the Commission to explore these accusations by giving sufficient time to all those who believe you and the residents of this City have been wronged. Sincerely, Roger M. Craver 1000 Venetian Way #804 Miami, Florida 33139 Sharon Kirby Wynne 801 Venetian Way #506 Miami, Florida 33139 Stephen E. Herbits 246 NE l 01 st Street Miami Shores, Florida 33138 (at the time of the City acts and filing of the civil complaint, a resident of 1000 Venetian Way, 1904 Miami, Florida 33139 Attached: Complaint to the Miami -Dade Commission on Ethics and Public Trust Recommendation of the Ethics Commission Advocate Response to the Ethics Commission cc: Mayor Tomas Regalado City Attorney Victoria Mendez City Manager Daniel Alfonso 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk STEPHEN E. HERBITS 246 NE 101" STREET, MIAMI SHORES, FL 33139 CELL: 305-962-5552 SHERBITS@GMAIL.COM April 26, 2016 Mr. Joseph M. Centorino Executive Director Miami -Dade Commission on Ethics and Public Trust 19 West Flagler, Suite 820 Miami, Florida 33130 Dear Mr. Centorino: ci This letter transmits a formal request to the Commission that they reopen Complaint C 15-27 which I filed in October and which was decided in March. The attached memorandum, responding to the work of the Commission staff, raises very substantial questions whether they followed the Miami -Dade County Charter, the Code of Ordinances, the COE's rules of procedure, and sound investigatory practices. Nothing short of a full hearing before the Commission where I am represented by my attorney is appropriate. Your early response to this request would be appreciated. Sincerely, L c Stephen E. Herbits cc: Samuel Dubbin, Esq. Attachment 1 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk MEMORANDUM To: The Miami -Dade Commission on Ethics and Public Trust From: Stephen Herbits, Complainant versus Assistant City Attorney Robin Jones Jackson. Case 15-27 Date: April 26, 2016 Request to Reconsider its Finding of No Probable Cause Overview. In light of the serious deficiencies in the examination of Miami -Dade County Commission on Ethics and Public Trust ("COE") staff investigation, analysis, conclusions, and presentation to the Commission the March 9, 2016 the "no probable cause" finding in the matter of Herbits vs Assistant City Attorney Jackson requires nothing short of reconsideration. Not only was the staff investigation deeply flawed by inaccuracies, bias, and an absence of curiosity, it so tainted the process, including the Commission meeting, as to make a mockery of anything that could remotely be characterized by the terms "thorough" or "fair." A review of the staff's investigative report, probable cause memorandum, and presentation to the Commission shows that the staff and advocate assumed the role of defender of Ms. Jackson's and the City's positions rather than the public's representative seeking the truth. This request, like the Complaint, does not ask the Commission to make a judgment on the veracity or usefulness of Ms. Jackson's legal opinion or advice. What it demonstrates is that her careful selection of material facts presented and omitted, she failed to provide information that would have been required by any Commissioner to make a reasonable judgment. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Summary. Here are the principal reasons why this case cries out to be reopened and reconsidered: • The materials produced by the COE staff reveal clear inaccuracies, lack of minimal investigatory curiosity, and bias in favor of the City and Respondent and against the Complainant. • The COE process, including the meeting on March 9, failed all measures of fairness, beginning with the Commission's decision to exclude the complainant, Stephen Herbits, from its proceedings: ✓ Without even giving him an opportunity to explain whether he met COE's "test" of being directly affected, while including Ms. Jackson's attorney in the hearing without Mr. Herbits' attorney being present, ✓ relying entirely on the staff's unchallenged research and report, to ✓ basing its analysis and conclusion on assumptions and staff representations, essentially beyond challenge, but which were in fact erroneous and contrary to documents in the staffs possession, as well as in the City's possession but not obtained by the staff. • The COE staff's investigation and analysis accepted, at face value, arguments made by Respondent Robin Jones Jackson, without requiring supporting documentation, and without disclosing the Respondent's principal defenses to the Complainant. The staff deemed this case among the most complicated it had considered, yet it failed to investigate with sufficient skepticism and objectivity to discover that Ms. Jackson's principal defense for her conduct was factually inaccurate, and that she knew it to be so. 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Moreover, had COE staff advised Mr. Herbits of Ms. Jackson's principal arguments, he would have been able to provide the investigators with further information showing Ms. Jackson's arguments were false, and that she knew they were false. • On the whole, staff and the advocate played the role of Ms. Jackson's defense counsel. For example, when a Commissioner (unidentified on the recording) who questioned the staffs staunch defense of Ms. Jackson on the issue of materiality of information withheld, she was eventually mollified by an explanation (speaker unidentified on the recording) based on the premise — never tested by staff — that Flagstone had the right to "cure" its default with the State and was in the process of negotiating a "cure." As shown below, both premises are false. Had Mr. Herbits and/or his counsel been present, they could have corrected the erroneous information with documentation to the contrary in real time and given the Commission an accurate picture. • The staff's Probable Cause Memorandum and Report of Investigation ("Investigation Report") also reflect a bias against the Complainant Mr. Herbits and in favor of the Respondent and the City and City officials in that they reference matters that are immaterial, inaccurate, or both, and as a result negatively prejudge Mr. Herbits' credibility, arguments, and factual assertions. Such bias violates COE Rule of Procedure 4.9(b),I • Ironically, the COE staff acted with the COE just as Ms. Jackson had done with the City Commission. Instead of advising this public decision -making body with full and accurate I COE Rule of Procedure 4.9(b) provides: "An investigation shall be impartial and unbiased in the conduct of the preliminary investigation. An investigator shall collect all evidence materially related to the allegations of the Complaint, whether such evidence tends to prove or disprove the allegations." Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk information, the staff played the role of a partisan, with misleading assertions and omissions, and said whatever they believed was necessary to advance the position of their favored side. In light of the factual inaccuracies outlined below and in the COE staffs defective investigation, the public can be left only with the impression that the COE staff never intended to seriously investigate, much less prosecute, Mr. Herbits' Complaint. They merely engaged only to the extent necessary to build a narrative to `justify" a decision exonerating the government official. Discussion The COE staff's materials contain the following inaccurate, misleading, unsupported, or biased statements: 1. Cure Argument Herbits' complaint alleges that Ms. Jackson knowingly provided false information and withheld material information when she informed the City Commission that even if its vote to re - approve the Flagstone agreement would violate the City Charter prohibition against charging less than fair market rent for public land, the City had "a good faith obligation" to allow Flagstone to meet the contractual June 2 deadline to commence construction. In fact Flagstone had breached the latest State agreement, i.e. the 2011 Partial Modification of the Deed Restriction in the State's original conveyance of Watson Island, which Ms. Jackson was fully aware of. The continued viability of this agreement was a precondition of the City's obligations to Flagstone. As the COE staffs Report notes, Herbits' Complaint alleges: Jackson did not disclose to the City Commission that Flagstone had breached its side of the good faith clause of the Agreement by failing to satisfy outstanding judgments and making required payments to the State 4 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk thereby causing the State to terminate its approval in 2012 .... effectively end[ing] the City's obligations under the Agreement. Report at 3. According to the COE staff, Ms. Jackson's principal defense is that (1) the City had a good faith obligation to approve the May 8 resolutions because its agreement with Flagstone required the City to allow Flagstone to attempt to "cure" its default with the State, (2) Flagstone was in negotiation to cure the alleged breach, and (3) that "those cure efforts were continuing all the way through." This point, made no less than 22 times throughout the Probable Cause Memo and Investigative Report, is the lynchpin of Ms. Jackson's defense, and of the COE staffs recommendation of "no probable cause." See Probable Cause Memorandum at 3, 4; Report at 4, 5,10,11,and 122 However, the "cure" argument is not only false, it is completely lacking in support, and is in fact contrary to City and State documents in the COE staff's possession. Moreover, the COE staff never advised Mr. Herbits that Ms. Jackson's defense centered on the "cure" argument.3 Staff's failure in this regard also suggests COE staff was biased toward Ms. Jackson from the start because it deprived Mr. Herbits of the opportunity to refute, logically and with documents, her primary argument. Its failure to inform Herbits about the "cure" argument was unfair to 2 Among the multiple references in the COE staff's description of Ms. Jackson's defense are the following quotes: "Jones -Jackson explained that the May 8, 2014 meeting was about Flagstone's efforts to cure a problem with the State, but not necessarily a problem with the City." COE Probable Cause Memo at 3. "Jones -Jackson and the City's position is that because Flagstone was in negotiation to cure the alleged breach, the City was obligated to allow them to do that, if not, the City would be in breach. Id., at 4. "Jackson explained that until such time when the State actually approved the next deed waiver (which the Florida Cabinet was going to vote on after the City approved the Resolution), they were still in a "review" posture which would cure any potential breach. Hence, there was a constant effort to cure going on from the time that the original breach had occurred." Id., at 4. 3 Staffs failure to advise Herbits of Ms. Jackson's position is contrary to the COE Rules of Procedure, Rule 4.7(c) and 4.9, as well as County Code Section 2-1074(c). 5 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Herbits, and unfair to the public because Ms. Jackson misled the COE into reaching incorrect conclusions based on bogus information. Here are the facts: The State of Florida originally conveyed Watson Island to the City of Miami for "municipal or public purposes only," and also prohibited private commercial activity on the island. After the City conducted an RFP process in 2001 to develop Watson Island that was won by Flagstone, it asked the State for a modification of the deed restriction to allow the Flagstone project, which the State granted in 2004. In 2010, after extending several financial and performance deadlines, the City amended its agreement with Flagstone to allow development in phases, extended more deadlines, ete. It was deemed a "substantial modification" by the City Attorney, and the City was required to seek and obtain a second Partial Deed Modification from the State in August 2011. In January 2012, Flagstone breached its obligations under the 2011 Partial Deed Modification Agreement by failing to satisfy all of the judgments of record against it (exceeding $700,000) and failing to pay pre -construction fees due to the State. Exhibits 2. The State considered the agreement to be automatically terminated and not subject to any right on Flagstone's part to "cure." Exhibit 3. (According to DEP's general counsel, "Paragraph 1.(c) provided that if Flagstone failed to [satisfy all undischarged judgments or deposit 125% of the amount outstanding into the Court registry by January 17, 2012] the Amended and Restated Partial Modification of Restrictions `shall automatically and immediately terminate and the cure rights [for other types of defaults] provided for in Paragraph 5 shall not apply."). See also Exhibits 4, 5. The State rejected Flagstone's June 2012 request for more time to discharge the judgments, making clear that the 2011 agreement was not subject to any right to cure. Exhibit 6. 6 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk ("In June of 2012, the City and Flagstone requested BOT (Board of Trustees) approval for more time to discharge the judgments with the State's percentage remaining at 15% of the City's gross rent. Negotiations stopped when the state's stipulation for 50% of the City's lease revenue was rejected by the City.") There is no evidence the State ever entertained any consideration about Flagstone "curing" the default. Further, nothing in any of Flagstone's attorney's correspondence after the January 2012 default obtained through public records requests or the multiple public records lawsuits against the City, or public records requests from the State, shows that Flagstone was attempting a "cure." Further, there is no evidence that Flagstone made any effort to "cure," its default after January 2012, i.e. by satisfying the four outstanding judgments exceeding $230,000. If Flagstone was attempting to "cure," the first step was completely within Flagstone's control — to pay the judgment creditors in full and obtain the required satisfactions for each judgment, or pay 125% of the sums owed into the Court registry. That simply never happened, and as late as April 2014, correspondence between the State, City, and the developer showed Flagstone refused to comply during the two years after the default. Exhibits 4, 5. So, Flagstone was either unwilling to satisfy its obligation, or understood that the State did not consider Flagstone to have the right to cure, or both. Further evidence of the City's recognition of the failure to cure: In August 2012 two City commissioners and the Mayor beseeched Governor Scott in to waive the default and reinstate the 2011 Partial Deed Modification agreement. Exhibits 7, 8, and 9. The State again refused, in an October 2012 letter from Department of Environmental Protection (DEP) Deputy Secretary Al Dougherty to Commissioner Suarez, which states that there were no further issues to be discussed, much less any receptivity or opportunity for Flagstone to "cure." The letter stated: 7 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk On August 16, 2011, at the request of the City and due to changes in the arrangement between the City and Flagstone, DEP once again brought this project to the Board of Trustees with a recommendation for approval, as amended. To show their support for this project, the Board of Trustees again approved a partial modification. This modification also required Flagstone to discharge all of its undischarged judgments related to the project or deliver an amount not less than 125% of the total value of those judgments to be held in an escrow account on or before January 17, 2012, or the agreement would be automatically terminated. Flagstone failed to meet that request and the agreement automatically terminated. As a result of these events and the lack of progress on this project over the past eight years, we have concerns about this project and its ability to move forward. We have met with Flagstone representatives and do date we remain firm in our decision. While job creation is certainly an important priority for our state, it is foremost to respect the direction of the Board of Trustees as a required and standard course of business and procedure. We respectfully thank you for your letter and the opportunity to articulate our position. Exhibit 2 (emphasis supplied). While Ms. Jackson provided the COE staff with the three City officials' letters and argued they were part of a continuous effort to "cure," she never gave it DEP Secretary Dougherty's October 2012 reply rejecting their requests to overlook Flagstone's default and reinstate the 2011 Modification.4 Moreover, there is substantial correspondence in 2013 confirming that the 2011 Modification was terminated and reminding the City that if it wanted the Flagstone project to proceed, a new partial modification of the deed restriction was required, and that was understood by Flagstone and the City. Exhibits 10, 11, and 12. 4 The letter from DEP Deputy Secretary Al Dougherty to Commissioner Suarez did not show up in the COE public records file obtained by Mr. Herbits after the COE dismissed the case. However, there can be no argument that the City Attorney's office was not aware of the October 2012 letter at the time of the May 8 meeting. Among other obvious reasons, it was attached as an exhibit to Herbits' March 2014 motion to enforce the City's obligations under Chapter 119, Herbits v. City of Miami, Case No. 13-23128. 8 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk After the City officials' failed efforts to reverse the State's position that the agreement was irrevocably terminated by Flagstone's breach, the City and Flagstone changed their approach. They attempted to construct a legal argument that the 2011 Partial Deed Modification was never needed in the first place. In mid-2013, they argued that the matter was controlled by a 1919 Legislative Act, not the 1949 deed from the State, which upon "re-examination" by the City's lawyers could be interpreted to mean that any use approved by the City Commission, even the private commercial Flagstone project, constituted a "municipal purpose." Exhibit 13, 14. Under that construct, Flagstone's default was no longer a problem because the 2011 Partial Deed Modification was never required!5 Ms. Jackson was personally involved in the City Attorney's Office's efforts to re -define the meaning of "municipal purpose" and construct an argument that the 2011 Partial Deed Modification Flagstone breached was never needed in the first place, so the breach did not matter. Exhibits 13, 15. This radical change in the City's approach to trying to rescue Flagstone can hardly be considered part of any "continuous effort to cure" by Flagstone. The City's efforts to re -define the State's original conveyance and eliminate the effect of Flagstone's breach was repeatedly rejected by the State. Exhibit 17. On March 26, 2014, Deputy City Manager Alice Bravo wrote the DEP general counsel in preparation for a meeting in Tallahassee with DEP officials and Flagstone's general counsel Nathalie Goulet. Ms. Bravo presented the City's then -main argument that under the 1919 Legislative Act (SLA), the only requirement is a "municipal purpose" which the Commission's approval of the Flagstone project 5 In late 2013, the City even attempted to retain some of the area's top law firms to give a legal opinion supporting that premise, yet no firm ever did so, with Flagstone's assistance. Exhibit 16. The City was so sensitive about this it attempted to withhold the correspondence with the outside law firms as exempt from disclosure under Chapter 119. Circuit Court Judge Cynamon rejected the City's exemption claims. 9 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk satisfied, such that the 2011 Partial Deed Modification was never necessary and the breach was moot. In her email, Ms. Bravo asserted that DEP officials had, in a conference call in June 2013, signaled agreement with that argument: The conference call took place on June 12, 2013 ... Veronica Diaz, Assistant City Attorney was the other City representative on the call with me. Most of the FDEP personnel cc'd on the email below participated on the call. During the call, I was informed that FDEP had acknowledged the validity of the 1919 SLA and therefore the next Deed Waiver for Flagstone to be requested from the TIITF would make reference to the 1919 SLA in lieu of the 19447 Deed. 1 then questioned the need for a waiver since the only restriction referenced in the 1919 SLA referred to "Municipal Purpose" only. We were coordinating further discussions regarding the need for a waiver when Related Group dropped out of the project. Exhibit 3 (Emphasis supplied). DEP general counsel Thomas Sawyer and several other DEP officials met with Ms. Bravo and Ms. Goulet on that same day in Tallahassee. Mr. Sawyer's April 1 email to DEP participants summarizing the meeting made it clear that the State never agreed with the City's argument about the 1919 Legislative Act. It also stated that Ms. Bravo quickly dropped the argument when it was rebuffed at the meeting in favor of a simple request for DEP to "administratively waive" Flagstone's breach: Alice Bravo kicked off the meeting trying to once again make the case that the 1919 Special Legislative Act controls whether or not Deed 19447 properly (or improperly as Alice claims) imposed a "private use or purpose" restriction on the City's ability to sell, convey or lease Watson Island. We (BOT) feel the 1913 Tidelands Act controlled, and we point to the fact that litigation ensued over that very issue with a settlement agreement being reached such that Deed No. 19447 was subsequently executed by BOT and accepted by resolution of the City. We also discussed that, fairly recently, waivers of the private use and purpose restriction have been sought by the City and granted by BOT. After meeting enough resistance that it became apparent to the City and Flagstone that a speedy flip of our longstanding position was not forthcoming, Alice moved on to the "ask," to wit: the City wants the Flagstone project to happen and requests that certain Flagstone monetary defaults be "administratively" waived and that the Amended and Restated Partial 10 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Modification of Restrictions (attached) be reinstated with presumably extended time frames since satisfactions of the outstanding judgments have not occurred (which Flagstone readily acknowledges). There was a veiled attempt to say that staff previously told Alice that the settlement agreements Flagstone was in the process of entering into would serve as satisfactions of the judgments, yet that argument was dismissed out of hand given the presence of lawyers. Finally, time appears to be of the essence as it was told to us that Flagstone was to break ground in September 2013 and obtained from the City a 9 month extension; accordingly, the extended time period within which to break ground lapses in June of this year. Katy expressed that getting this item onto the May BOT agenda was unreasonable, so Alice was asked why the City can't simply seek another extension. She, in turn, blamed "local politics" which in my mind indicated that there might not be the wholehearted City endorsement of the project that was initially indicated. Exhibit 3 (Emphasis supplied). (The email text above is paragraphed here for readability; it is all one paragraph in the original email text.). In the same email, Mr. Sawyer noted that after the meeting, "the City and Flagstone (presumably Flagstone) was going to review the Amended and Restated Partial Modification of Restrictions to provide us with an argument for an `administrative' waiver or cure for the monetary default that's built into the document." But Mr. Sawyer made it clear that in the view of DEP, no such leeway ever existed and didn't exist now: Paragraph 2.(c) of the attached Amended and Restated Partial Modification of Restrictions states that Flagstone shall either discharge all undischarged judgments identified in the affidavit dated August 4, 2011 (also attached), required in Paragraph 2.(b)(iii) of the Amended and Restated Partial Modification of Restrictions or deliver to the Miami -Dade County Clerk of Courts' Registry on or before January 17, 2012, to be held in an escrow account, an amount not less than 125% of the total remaining outstanding principal balance of all undischarged judgments identified on Exhibit "C" of the Amended and Restated Partial Modification of Restrictions. Flagstone did • neither by; January 1 2012. Paragraph 2 (c) further provided that if Flagstone failed to do one or the other, the mended ;and Restated Partial Mod cation of Restrictions "shall automaticall � crud rari»iecliately termanate'-and the tjrpesW default] provided for in .Paragraph" 5 shall trot apply;" It's also noteworthy that with regard to Flagstone's undischarged judgments, Flagstone acknowledged (again in Paragraph 2.(c)) that all the judgments identified in Exhibit "C" had 11 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk not yet been discharged even though Flagstone was in the process of signing a settlement stipulations for two of the six judgments identified in Exhibit "C". I feel the automatic and immediate termination language, further beefed up by the paragraph 5 cure rights not being deemed to be applicable, is quite damning to any argument to be made for some form of "administrative" waiver of a default. While always open to a contrary argument, I'm not real keen on swaying from the clear language of the Amended and Restated Partial Modification of Restrictions, and neither the City nor Flagstone have sent us anything further as was requested of them as we concluded our meeting. Exhibit 3 (Emphasis supplied)(yellow highlighting is from the original email produced by DEP in response to Herbits' public records request). On April 4, 2014, Mr. Sawyer responded directly to Ms. Bravo and rejected all of the City's positions, including unequivocal rejection of any notion that Flagstone had at that time, or ever had, the right to "cure" its January 2012 breach: From: Sawyer, Thomas[mailto:Thomas.SawyerOdep.state.fl.usj Sent: Friday, April 04, 2014 6:05 PM To: Bravo, Alice Cc: Torre, Henry; ngoulet@flagstonegrouo.com; Woolam, Scott; Campanile, Nick; Fenton, Katy; Heiser, Gary; Leopold, Matt Subject: RE: Watson island Hi Alice — I hope you are well and want to take the opportunity to say it was a pleasure meeting you on March 26, 2014. After the our meeting on March 26, I reviewed your post -meeting e-mail (below) and feel the need to clarify that the debate surrounding Chapter 6451, Laws of Florida 1913 versus Chapter 8305, Laws of Florida 1919, was not the "go forward" question that was sought to be addressed after our meeting; rather, the Division of State Lands would like to have the City of Miami, in concert with Flagstone, address the following: 1. There appear to be certain judgments that remain unsatisfied notwithstanding the January 17, 2012 deadline set forth in the Amended and Restated Partial Modification of Restrictions (the "Private Use Modification"), to wit: Americas Media Group Worldwide, LLC ($127,609.40), Totem Communications Group, Inc., f/k/a Redwood Custom Communications, Inc. ($40,862.20) and Pandiscio, Inc. ($61,594.10). Please let us know when those judgments will be satisfied of record so that one of the monetary defaults in the Private Use Modification can be taken into consideration; 12 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk 2. Notwithstanding the fact that the monetary default referenced above triggered an automatic and immediate termination of the Private Use Modification, you were going to have legal counsel provide our Office of General Counsel a basis for an "administrative cure" (keeping in mind the clear language in the Private Use Modification that the cure rights in paragraph 5 of that agreement did not apply to this time specific monetary default). Exhibit 4 (Emphases supplied). To be clear, on April 4, 2014, one month before the May 8 City Commission meeting, DEP's general counsel clearly stated that there was never any right to cure under the Private Use Modification "because the cure rights in paragraph 5 of that agreement did not apply to this time specific monetary default." In light of this clear statement rejecting any conceit that Flagstone was in a "cure" posture in the months and weeks before the May 8 meeting, Ms. Jackson's subsequent assertions that her failure to inform the City Commission that Flagstone's breach with the State in fact was final and terminated any "good faith" obligation of the City was based on Flagstone's "continuous efforts to cure" is completely contrary to the parties' correspondence and actions. The April 4 email even shows that Flagstone never even satisfied the judgments, i.e. never corrected the conduct that caused the breach and termination of the 2011 Modification Agreement. And to be clear, the COE staff was in possession of the April 4 email chain. The situation gets worse, as far as Ms. Jackson's excuse is concerned. Astonishingly, on April 7, 2014, in response to the State's unequivocal rejection of all of the City's efforts to "make the problem go away" with an "administrative" waiver of Flagstone's default, Flagstone flatly refused to satisfy the outstanding judgments and correct the breach. And the City was on board with Flagstone's obstinacy. Here is what Flagstone's general counsel Nathalie Goulet and City real estate department director Henry Torre agreed: Nathalie: Per our earlier conference call, the following are the agreed upon actions: 13 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk 1 - Per email below, Flagstone will not agree to pay off the existing judgments and continue with the payment schedule. Please confirm the payment schedules. 2- Flagstone will retain Counsel to discuss viable "administrative cure" options with the State. Specifically, Flagstone will discuss the option identified today by the City Attorney's office. Exhibit 4, April 7, 2014 Email from Henry Torre to Nathalie Goulet, Alice Bravo, Aldo Bustamante (Emphasis supplied). Finally, even after receiving Mr. Sawyer's April 4, 2014 email, Flagstone stubbornly refused to budge, arguing on April 13 that the State's termination was ineffective because the default Ietter was not recorded in the public records like the Partial Deed Modification itself was. Exhibit 5, at 2. The State treated this argument with the scorn it deserved. Id., at 1.6 In short, the events in the months and weeks leading up to the May 8 City Commission meeting refute any plausible belief that Flagstone was attempting to cure its default with the state and that "those cure efforts were continuing all the way through." COE Probable Cause Memo, at 5. In this regard, it is important to note that Ms. Jackson was in charge of the City Attorney Office's handling of the Flagstone matter during this time, and that it was a top office priority as well. On April 24, 2014, City Attorney Victoria Mendez wrote to other senior staffers: "Please help Robin on this. We (sic) are under the gun and I want eyes on this." Exhibit 27. In light of these communications, including materials in the COE staff file, Ms. Jackson's and the COE staffs additional reliance on a discussion before the City Commission in July 2012 6 "[A]s you know, a document does not have to be recorded to be valid or effective. [T]he Notice of Termination was sent to Flagstone and thus Flagstone had notice. More importantly, DEP was under no legal or contractual obligation to provide Flagstone with the Notice of Termination because the Amended and Restated Modification of Deed Restrictions automatically terminated based on Flagstone failing to satisfy all judgments by the date specified in the Amended and Restated Partial Modification of deed restrictions and the cure provisions did not apply to this default." 14 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk is ludicrous given the clear evidence that there was no right to cure and no ongoing effort to cure by Flagstone. Moreover, to the extent Ms. Jackson's current defense was based on representations made by Flagstone's outside counsel to the City Commission in July 2012, they too were false and misleading. At that meeting, Flagstone's lawyer informed the Commission at the time that "Five of the six judgments had been resolved; one was resolved three weeks later. . .. we got notice of the default ... in June from the State, so it had already been cured...." July 2012 transcript, at 6. This representation was inaccurate when made and is refuted by substantial subsequent correspondence, of which Ms. Jackson and the City were well aware. DEP general counsel Sawyer's April 4, 2014 email to the City shows that two years later, Flagstone had in fact failed to satisfy three outstanding judgments totaling more than $230,000, Exhibit 4, and Flagstone and the City agreed Flagstone would NOT offer to satisfy the judgments, i.e. to "cure" the default, but would continue, in April 2014, to flout the very provisions of the 2011 Partial Deed Modification Agreement that it breached in January 2012 to cause the termination. Id. These facts, according to Herbits, were material to the question of whether the City had any remaining "good faith" obligation to allow Flagstone to receive a lease of City property for one - quarter of fair market value, in violation of Section 29-B of the City Charter. Finally, not only did Ms. Jackson knowingly provide false information and knowingly omit significant facts to the City Commission on May 8 her justifications for withholding these material facts from the City Commissioners are false and misleading themselves. The COE staff either failed to grasp these simple facts, failed to make reasonable inquiry itself, or chose to withhold the facts from the Ethics Commission and the public. Whether due to bias or a failure to appreciate the significance of the information, or other causes, COE's staffs failure to challenge Ms. Jackson's explanation, 15 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk or bring these facts to the COE's attention, or apprise Mr. Herbits of Ms. Jackson's "cure" argument so he could bring these facts to their attention, constitute a major investigative and prosecutorial failure. In short: COE staff did to the COE what Ms. Jackson did to the City Commission: it withheld information that commissioners would undoubtedly have considered material to their analysis of whether Ms. Jackson "knowingly furnish[ed] false information on any public matter, nor knowingly omit[ted] significant facts when giving requested information to members of the public" as prohibited by the Truth in Government provision of the Miami -Dade County Citizens Bill of Rights. The April 4, 2014 exchange was part of the COE staff investigation file, and clearly contradicted Ms. Jackson's reliance on the "cure" argument. For COE staff to ignore the plain evidence undermining Ms. Jackson's position shows incompetence, bias, or both. Importantly, one COE Commissioner asked several questions about the COE staffs defense of Ms. Jackson based on what factual omissions would, if disclosed, have been material to the City Commissioners' analysis of whether a vote to enforce the Charter would constitute a "breach" of the City's agreement with Flagstone. Her questions were right on point. If the COE staff had even mentioned that there was evidence so clearly refuting Ms. Jackson's central arguments, the COE members would undoubtedly have been troubled by Ms. Jackson's defense. Hence, the parallel of the COE misleading its own Commission with Ms. Jackson misleading the Miami Commission — this time at the point of final decision. Because the "cure" issue is so central to Ms. Jackson's defense, attached as Exhibit 1, is a timeline of events between January 2012 and May 2014 on the subject. Other Unsupported, Illogical, or False Arguments 2. COE Staff Ignored the Inconsistency in Ms. Jackson's positions 16 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk The COE staff allowed Ms. Jackson and the City to assert the position that despite a possible violation of Section 29-B of the City Charter, i.e. by having the Commissioners approve a lease of public land on Watson Island for less than fair market rent, the City did not have the right to oppose the May 8, 2014 resolutions because it would have resulted in a breach of contract. Ms. Jackson's position is inconsistent with (a) Charter Section 29-B, (b) the Agreements incorporating that and other Charter requirements, and (c) her position in 2012 when confronted with a potential violation of the City Charter on the Flagstone project, when she opined such a violation would authorize the City to terminate the agreement. Herbits' complaint alleged that Ms. Jackson "did not inform the City Commission that their vote in favor of the Resolutions would ratify the Agreement at below market value in violation of Section 29-B of the City Charter," a material omission in violation of the Truth in Government provision of the County Citizens Bill of Rights. The COE staff's analysis and conclusion accepting Ms. Jackson's "excuse" at face value ignores other facts that the staff had in its possession. In this case, it was a memorandum from 2012 in which Ms. Jackson took the position that if the State insisted on increasing the percentage it would receive above 15%, it would reduce the City's revenues promised in Flagstone's RFP response and the 2001 referendum, and violate Charter Sections 29-A and 29-C (requiring a referendum and RFP to lease public waterfront land on Watson Island to a private party). In 2012, Ms. Jackson opined that these charter violations would have permitted the City 7 The Miami -Dade County Citizens Bill of Rights requires "truth in government." Specifically it provides, in paragraph (A)2: "Truth in Government. No County or municipal official or employee shall knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to members of the public." 17 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Commission to terminate the agreement and required a new RFP and a new referendum. Exhibit 19. In 2012, the State was attempting to obtain a higher percentage of Flagstone's lease payments in return for a new Partial Deed Modification, which Ms. Jackson stated would reduce the amount of money the City would receive, i.e. the $2 million per year promised in Flagstone's RFP response and the referendum by which the public voted in favor of the project. She further stated that since Section 29-A of the City Charter requires a lease of public land to be conducted through competitive bidding, and Section 29-C requires a that a lease of public waterfront land on Watson Island be approved by a referendum, those changes would violate the charter and authorize the City Commission to terminate the project. She opined: Any changes which: (a) diminish the financial return to the City under, (b) cause a substantial increase in the City commitment of funds regarding, or (c) result in any other material alteration of the City's award of the Project under Charter Section 29-C would cause a violation under the City Charter Section 19-A(c) "Safeguards". Accordingly, any such changes would authorize the City Commission to terminate the award after a public hearing. Exhibit 19. (Emphasis supplied).8 She added: In addition to required compliance with the Referendum, the Flagstone Project still (a) must comply with the City's RFP and Flagstone's original Proposal, and (b) must not diminish the financial returns to the City contemplated by the City's RFP and Flagstone's original Proposal. Exhibit 19. 8 Ms. Jackson cited other provisions of the referendum language and accompanying education materials which, if changed, would "violate the referendum" and thus violate the Charter. Exhibit 19. 18 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk In contrast, in 2014, Ms. Jackson aggressively asserted that notwithstanding a possible violation of Charter Section 29-B, i.e. the City charging Flagstone one -quarter of the current fair market rent because values had increased 400% since 2002, the City had no choice but to perpetuate Flagstone's windfall and ignore the Charter.9 Exhibit 18. The circumstances between 2012 and 2014 are indistinguishable. In July 2012, in order to protect the City's revenue stream and thwart the State's effort to increase its share of project revenues in their post January 2012 breach negotiations, Ms. Jackson asserted as the official position of the City, that changes that reduced the rent to the City from levels promised in Flagstone's RFP response and the November 2001 referendum mandated by the Charter would have required the Commission to terminate the agreement and conduct a new referendum and RFP. Yet in 2014, when faced with a situation where the City insisted on charging minimum guaranteed rent of $2 million based on 2002 appraisals despite current appraisals that showed fair market rent was now over $7 million, in violation of Section 29-B of the Charter, Ms. Jackson took the opposite position. She informed the Commission that any attempt by the City to bring the agreement into compliance with the Charter would constitute "a very expensive breach of contract." Exhibit 18, at 90. Further, the fair market value requirement is not only independently required by Section 29-B, it was specifically incorporated into the City's original RFP and Flagstone's RFP response.'0 Thus, Ms. Jackson has no argument that the City's and citizens' right to receive fair 9 Further, Ms. Jackson, by failing to respond to questions from the Commissioners on the rent issue, withheld "significant facts," i.e. she did not provide the legal advice that a contract or lease cannot supersede the requirements of the City Charter. 1° Resolution 01-1081 authorizing and specifying the terms of the RFP language included the requirement under Section 29-B of the City of Miami Charter that any lease or sale 19 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk market rent was subject to lesser legal protection than their right to receive a minimum of $2 million per year in rent from Flagstone once the project was completed, as she opined in 2012. Her statement to the Commission on May 8, 2014, to the contrary violated Article A2 of the Miami -Dade County Citizens Bill of Rights. 3. It was not possible for Ms. Jackson and the City to ascertain fair market rent on May 8, 2014 because the Ground Lease was not yet entered into, and the City Commission, not the public, was Ms. Jackson's client COE STATEMENT: Ms. Jackson stated that, if you look at all of the components of the lease, she does not believe that the property is being leased for less than fair market value because in 2014, they had not entered into the leases yet. This is part of what is difficult to understand.... Jones -Jackson added that this question was not asked of her at the [Miami Commission] meeting." Probable Cause Memo, at 4. RESPONSE: This is a ludicrous statement for several reasons First, the statement is not accurate on its face. Whether the rent approved in 2014 constituted "fair market rent" did not depend in any way on whether or not the leases had been "entered into yet." In September 2010, the City re -negotiated terms for and entered into an Agreement to Enter Ground Lease, terms that would apply to the Amended and Restated Ground Lease, which set forth the rent payable to the City at stated intervals. Exhibit 23. It was premised on a schedule established in and attached to the 2010 resolution which set forth the dates for certain payments. of City -owned land "must provide the City with at least fair market value." Exhibit 20;. The City's RFP included the Fair Market Value requirement, Exhibit 21. Flagstone's winning RFP response provided that Flagstone "would adhere to the requirement for compensation equal to fair market value." Exhibit 22. 20 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Second, the 2014 vote was required before the leases themselves could come into existence, i.e. to be "entered into yet." Without the May 8 vote, and subsequent Cabinet approval, the City and Flagstone would never "enter into the leases." If entry into the leases is a pre -condition of determining fair market rent, under Ms. Jackson's construct embraced by COE staff, fair market rent would never be ascertainable prior to the vote of approval, hence Section 29-B of the City Charter would be rendered impossible to enforce. It would, in fact, make the Charter provision a nullity. Third, it is also incorrect that Ms. Jackson was not asked this question. Sarnoff's question followed Herbits' and his attorney's presentation which specifically cited 2013 appraisals in comparison to the 2002 appraisals and guaranteed minimum rents, and specifically invoking Charter Section 29-B. COE STAFF STATEMENT: "Jackson was asked to expound on the issue of the City violating its charter by leasing the subject property at less than fair market value. Jackson said that the question was not asked of her as counsel for the City by the City Commission. In November 2001, when the referendum went to the voters, the floor amount of a base rental payment was set. The set amount is a floor of the lease payments, and not a ceiling. Jackson added that this question was not asked of her at the meeting." Report at 6. RESPONSE: If "this question" was not asked of her, what was? Herbits and his counsel both directly raised the issue that the City Commission would violate Section 29-B of the Charter if it approved the lease for $2 million when current appraisals showed fair market rent was $7 million. Exhibit 18, at 89-90. Sarnoff asked Ms. Jackson directly what the City Commission could do in light of those facts. Id. 21 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk COE STAFF REPORT. The COE Staff Report states that according to Ms. Jackson, when the City prepared to hold Flagstone in default in 2009, leading to the 2010 amendments, "many facets of payments to the City were renegotiated at that time to the $2 million dollar base rent." It adds: "in 2010, the City Commission assisted in helping to improve those components for the City. The definition of rents was renegotiated and approved, and the additional percentages and types of rents was approved. Additional fees if they should, at a time permitted under the Agreement, sell out part of their interest, additional fees to the City." Report, at 6, 7. RESPONSE: Ms. Jackson's statements that the 2010 amendments added "additional percentages and types of rents is not supported by any record. To the contrary, the original contract rent from 2001 called for a $2 million minimum annual guaranteed base rent, plus 1% of gross revenues starting in the third year after the project was completed, and 2.5% of gross receipts from fractional unit license sales. See Exhibits 20, 21, 22, 23. The 1% and 2.5% provisions were part of the original 2001 City Commission resolution authorizing the project, the RFP, and the agreement; they were not added in 2010. If Ms. Jackson's position is based on the City's inclusion of a requirement that the eventual sale of the developer's interest would trigger fees to the City, such a provision would have no bearing whatsoever on fair market rent for the project when Flagstone eventually commenced and completed any phases of the project. COE STAFF STATEMENT: "Jackson explained that, as Assistant City Attorney, her clients at the subject meeting were the City Commissioners. Jackson said that at the meeting she was responding to questions posed by her clients, the City Commissioners, and not by any member of the public. If you had seen some of the record there, this was not a public hearing, although people were allowed to address the issue. Jackson confirmed that she was responding to the questions that were asked of her by her client." Report, at 6. 22 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk RESPONSE: It is astonishing that the staff of the Commission on Ethics and Public Trust, charged with enforcement of the County Citizens' Bill of Rights Truth in Government provisions, would accept this answer. If Ms. Jackson's statement, that the City Attorney's office has no obligation to tell the truth when addressing the Commission after the "public meeting" phase of the proceedings has ended, is a correct interpretation of the Truth in Government provision of the Charter, the provision is meaningless. COE STAFF STATEMENT: "Jackson said that it was not her legal role to notify the Commission that the property was being leased at lower than fair market value in violation of the City Charter. Jackson added that if you look at all the components of the lease, she does not believe that the property is being leased for less than fair market value because in 2014 they had not entered into the leases yet...." Report, at 6. RESPONSE: Even assuming for the sake of argument that the Commission is Ms. Jackson's client and not the citizens of the City of Miami, how can she argue that she has no duty to advise the City Commission that the Charter forbids the Commission (her client) to favorably consider a lease of public land for less than fair market value? Charter Section 29-B is specifically directed to the Commission. It provides: "The City Commission is prohibited from favorably considering any sale or lease of property owned by the city unless there is a return to the city of fair market value under such proposed lease or sale." To be sure, most citizens would recoil at the notion that an assistant city attorney making a material misstatement or withholding material information from the Commission is not the same as a misrepresentation to or withholding material information from the public. Yet, even under Ms. Jackson's convoluted defense, the fact remains that she failed to advise the Commission that if Herbits and others were correct, they, the Commissioners, would violate Section 29-B if they approved a lease of public 23 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk land for less than fair market value. She has a duty, as an advisor to address the implications of the issue before her and as a Member of the Bar to advise her "client" the Commission, that it is about to violate the city charter. And Herbits contends she had a duty to the public to provide that information as well. 4. Documented Amount of $58 million COE STAFF STATEMENT: "Jackson said that she based the amount that she stated at the meeting ($58 million dollars) on all of the years of information being provided by Flagstone, its legal professionals and its financial professionals to the City and to State agents." Report at 5. RESPONSE: There is no detail in the two letters relied on, nothing even close, that actually "documents" Flagstone's expenses, and the claim was knowingly false because the dates of the letter reveal that the bulk of the expenditures occurred before the 2010 renegotiation and introduction of the good faith clause. Developers' expenses are at the risk of the developer, not the City. If the good faith clause changes that, then, at most the cost, to the city would be only a few million dollars. This fact is important, because more than one Commissioner referred to the amount of the potential liability as part of their consideration. 5. Evidence of Bias COE STAFF STATEMENT: "Jackson said that she was providing to the COE the stipulation for settlement and covenants not to sue dated from October of 2005 that is among Flagstone, the City, Herbits, and Robert Zimmerman. This document has been referenced at City Commission meetings." Report, at 7 RESPONSE: These documents have no purpose other than to prejudice the decision makers against Herbits, as if his opposition to the project is relevant to whether or not Jackson 24 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk knowingly furnished false information or withheld material information from the public. There is no relationship between the two. Further, Ms. Jackson did not point out that Mr. Herbits' 2005 settlement agreement only precluded his further opposing the Major Use Special Permit (MUSP) as approved in 2004. Once the agreements were "substantially changed" in 2009-2010 (according to City Attorney Julie Bru), these restrictions were no longer applicable to the issues Herbits was raising. Hence any insinuation that Mr. Herbits lacked the full right to participate in the public discussion about the legality of the 2010 amendments, or that his 2005 settlement is material to his current Complaint, is unfounded. COE STATEMENT: "Sarnoff explained that he was aware that Flagstone had failed to timely make a payment to the State, which put them in a renegotiation position with the State.. . . Sarnoff added that the sum of the late payment was miniscule when you consider that Flagstone had already put $60 million dollars into the project. Sarnoff stated that he knew from Flagstone itself that Flagstone was not aware that it had failed to timely make the payment to the State." Report, at 8. RESPONSE: Perversely, former Commissioner Sarnoff's argument that Flagstone was in a "renegotiation" with the State is more accurate than Ms. Jackson's indefensible position that it was in the process of "curing" its default. The State terminated the 2011 Partial Deed Modification and after January 2012, the City and Flagstone were flailing about searching for a path to either obtain an "administrative waiver" of the default or construct an argument that no modification was required, but the State considered the 2011 Partial Modification terminated and insisted on a renegotiation if the City and Flagstone cared to proceed. However, Sarnoff gave the COE staff inaccurate information in stating that the only default was Flagstone's failure to pay the State fees. Critically, Flagstone also failed to satisfy at 25 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk least four of the outstanding judgments listed on the 2011 Partial Deed Modification, totaling over $230,000. Flagstone undoubtedly knew it had failed to satisfy that condition of the 2011 Modification, and so did the City. COE STAFF STATEMENT: "Samoff advised that complainant Herbits had filed a bid protest as the number two bidder on the Watson Island project. He thinks the number two bidder may have been Swerdlow." Report, at 9. RESPONSE: This is pure fiction. Herbits was not involved in any way with any competitor's application. Did the COE do any minimal research to ascertain the truthfulness of Sarnoff s statement? The staff did not even bother to ask the complainant if it was true. If they had, they would have found that Sarnoff was lying, a fact that would have been material to a Commission's judgment in weighing the evidence and arguments. Along those lines, it is not surprising that Sarnoff said he "did not remember" what he told Ms. Jackson in their sidebar conversation before Sarnoff asked the questions from the dais that led to Ms. Jackson's misleading the Commission. 6. Other General Flaws in Investigation and Report COE STAFF STATEMENT: "Due to a downturn in the economy beginning in approximately 2008, the City amended its agreement with Flagstone in September 2010 to allow Flagstone to build the development in phases, and did not change the basic rent of $2 million per year." RESPONSE: This statement accepts the narrative of Flagstone Island Gardens, LLC, the developer who benefited from Ms. Jackson's misrepresentations, and ignores the well - documented history of the City's interaction with Flagstone. Notably, a July 2012 Memorandum by Flagstone's outside attorneys, Shutts & Bowen (whose client Flagstone benefited from Ms. 26 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Jackson's misrepresentations), included in COE's investigative materials, summarized the Flagstone -City history this same way: "After the collapse of the real estate and financial markets in 2008/2009, Flagstone and the city renegotiated this transaction for the benefit of both parties and respond to the new realities of the financial and real estate markets." Exhibit 24. However. in fact long before the 2008 recession, due to Flagstone's inability to raise money or meet its original deadlines to commence construction, the City, after its initial approval of the MUSP, extended Flagstone's deadlines in 2004, 2006 and 2008. Further, it is generally acknowledged that the Great Recession of 2008 began in September of that year, yet Flagstone requested its third extension of its commencement deadline in June of 2008. The COE Staff Memorandum also fails to state that the proximate cause of the 2010 amendments was Flagstone's continuing inability to raise capital for the project to meet its deadlines to commence construction, and 2009 default under its obligation to pay the City its minimal pre -construction rent of $200,000. Exhibit 25. Notably, prior to 2009, Flagstone had paid the City a grant total of $100,000 for the rights it acquired under the RFP, which constituted the first fees or payments of any kind since Flagstone won the RFP in 2001 and entered into its first agreement to enter ground lease in 2003. Exhibit 26. COE STAFF STATEMENT: "In summary, Complainant sets forth certain legal positions which are in conflict with the City's. These differences of opinion do not mean that the Complainant is "right" and that Jones -Jackson is "wrong" or that Jones -Jackson knowingly gave false information or omitted significant facts." COE Memo page 2. RESPONSE: COE's characterization of the "differences" between Mr. Herbits' allegations and the City's position suggests that both parties, looking at the same facts, simply came to different legal conclusions. This statement ignores the overriding reality that the entire 27 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk premise of the City's or Ms. Jackson's "positions" as described in the Probable Cause Memo and Investigative Report are based on incomplete and inaccurate facts, and if COE staff had requested or obtained documentary support for the City's and Ms. Jackson's assertions, or even paid minimal attention to emails and other records that it had in its investigative file, it could not have accepted the City's or Ms. Jackson's "positions." Had the COE staff asked for documentary support for the City's and Ms. Jackson's assertions, or examined the complete file in light of their positions, it would have had no choice but to conclude Respondent not only misled the City Commission on May 8, 2014, but gave false information and withheld material information from the COE staff in her responses to the investigation. COE STAFF STATEMENT: "Respondent, Robin Jones -Jackson was interviewed by a COE staff investigator. She stated that, although it was a little difficult to fully understand the nature of the afore -stated allegations, she was glad to provide the COE with every bit of information required." COE Memo page 3. RESPONSE: This assertion is fatuous, and begins to reflect the bias against the Complainant and in favor of the Respondent that becomes more obvious throughout the Memorandum and Report. Of what weight is a respondent's statement that she "was glad to provide the COE with every bit of information required?" Would the investigator expect her to say "I will only give you what I want, or what you know enough to ask me for regardless of whether I provide the whole story?" The problem with COE staff reference to this statement is not just that it betrays a lack of common sense and objectivity, but that in fact, COE staff accepted every argument Ms. Jackson made at face value, and contented themselves with the extremely limited information she provided in support of her positions, without testing it, reviewing it critically, reviewing the records it had critically for contradictory information, or, 28 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk perhaps most egregiously, informing Mr. Herbits about her principal defense, thus ignoring the large body of contradictory materials that Mr. Herbits would have provided had he been informed of her position. These are described throughout this memo, above. Summary Each fact presented by the Complainant to the COE staff and now directly to the Ethics Commission is specific and concrete evidence that Mrs. Jackson not only misled the City Commission, but the COE itself. But there is even a larger issue here that must be considered by the COE. That is the issue of pattern. Were this case to turn on a single phrase or even a single argument, it would still have to result in a finding of a violation of the Ethics and Trust law. But collectively, when one examines the multitude of misleading statements or omissions, the conclusion reveals an arrogant disregard for the law, for integrity, for accuracy, insults the City's Commissioners who actively demonstrated an interest in this subject and stated their reliance on her advice, and the public as well.. This pattern of misbehavior is further supported by a clear motive. The city, after two - years of unsuccessfully trying to "fix" issues with this development, had left itself only this meeting on May 8, 2014, to finalize the deed modification for Flagstone to present to the Cabinet before June 2. Without passage, Flagstone would have missed its deadline of June 2 to commence construction. The insistence that not one word be changed in the staffs presentation to the Commission without dire consequences was promoted in desperation, even to the point of a member of the Florida Bar, acting in her official capacity as an attorney for the City Attomey's office, furnished false information and misled the Commissioners. 29 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Without a vote to acknowledge these facts, the COE gives permission to others to behave in a similar manner. At some point, the COE itself must be part of the solution or it defines itself as an important cog in the failure of government. 30 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk October 23. 2015 Mr. Joseph Centorino, Executive Director 1Viiatni-Dade County Colninission on Ethics and Public Trust 19 West Flai3ler Street, Suite 820 Miami, FL 33130 RE: Ethics Complaint against Robin Jones Jackson, Senior Assistant City Attorney of the City of Miami JURISD�CT'lOi�; The Miami -Dade County Commission on Ethics and Public Trust ("Ethics Comnussion-') has jurisdiction to hear this complaint under the Miami -Dade County Code of Ethics & Conflict of interest Ordinance. Co. Code §* 2-1 1.1. Further_ the Ethics Commission has jurisdiction to hear this commpiaint under the Miami -Dade Count)' l'lome Rule Charter, Citizens' Bill of Rights § (A)(2). LEGAL SUFFICIENCY The following complaint meets the requirements of legal sufficiency and may be properly heard by the Ethics Commission. The complaint relates to the potential ethical misconduct of Ms. Robin Jones Jackson. who likely violated the Miami -Dade County Code of Ethics & Conflict of Interest Ordinance. the Miami -Dade County Citizens' Bill of Rights. or both_ while acting in her official capacity as Senior Assistant City Attorney of the City of Miami. The allegations of ethical misconduct made herein against Senior Assistant City Attorney Robin Jones Jackson are based on the personal knowledge of the complainant, Mr. Stephen Herhits. and is signed and submitted under oath. 1 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk STATEMENT OF FACTS BASED ON PERSONAL KNOWLEDGE The primary and underlying; event upon which this ethics complaint is based occurred on Thursday, May 8, 2014 during a City Connnission Meeting of the City of Miami ("City Commission Meeting"). Ms. Robin Jones Jackson appeared on the record in her official capacity as Senior Assistant City Attorney and spoke on behalf of the City Attorney's Office regarding Resolution 14-00430 (Agenda Item RE. 10) and Resolution 14-00431 (Agenda Item RE.11, These resolutions were opened for public hearing as companion items, as both related to the i latson Island Project and contractual obligations between the City of Miami and Flagstone Island Gardens. LLC ('`Flagstone'). RE.10 was a resolution to execute the partial modification of the original restriction to Deed Number 19447-8 between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and the Cit:° of Miami. RE.11 was a resolution to negotiate and execute a compliance agreement between the City of Miami and Flagstone. During the public hearing of Resolution 14-00430, Ms. Jackson asserted that the City of Miami had a contractual obligation to comply with the terms of the agreement with Flagstone as renegotiated in 2010 and that the City could not modify the agreement in any way prior to the then pending performance deadline of June 2, 2014. Ms. Jackson maintained this position on behalf of the City Attorney despite having knowledge that there were unresolved questions relating? to Flagstone's payment or non-payment of monies that it was contractually obligated to pay and failure to fulfill other obligations going back several years. 1\4s. Jackson further advised the Citv Commission that the City of Miami would incur significant financial liability should the City attempt to modify the agreement in order to comply with the City Charter. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Ms. Jackson asserted that the City was bound by a good faith obligation to perform under the agreement; that Flagstone had fully complied with the terms of the agreement, including its financial requirements; and that the City would effectively be in breach of contract if it attempted to unilaterally modify the agreement terms, thereby exposing itself and taxpayers to substantial financial liability in the amount of$58 million dollars. Ms. Jackson asserted this official position on behalf of the City Attorneys Office without conducting due diligence or reasonable legal inquiry with regard to several of these points, as outlined below.' The City Commission relied upon the legal advice of Senior Assistant Cite Attorney Robin Jones Jackson, and under the belief that the City was legally bound to maintain its contractual relationship with Flagstone. the City Commission voted in favor of Resolution 14-00430 (Agenda Item RE. 10) and Resolution 14- 00431 (Agenda Item RE.11). POTENTIAL VIOLATION OF ETHICS AND PUBLIC TRUST The Miami -Dade County Citizens' Bill of Rights is intended to ensure that County and municipal govermnent officials provide the public with full and accurate information. The Citizens' Bill of Rights guarantees the right to Truth in Government. Under Section (A)(2) of the Citizens. Bill of Rights. "No County or municipal official or employee shall knowingly furnish false information on any public matter, or knowingly omit significant facts when giving requested information to members of the public." Senior Assistant City Attorney Robin Jones Jackson is considered a member of municipal_ depart nentai personnel as defined in Miami -Dade County On May 29, 2014. Complainant and two affected condominium associations requested public records pursuant to Chapter 119, Florida Statutes, from the City for records supporting Ms. Jackson's statements about the Citv's potential exposure of $58 million. On June 9. 2014. Complainant and the associations submitted a separate Chapter 119 request to Ms. Jackson personally for the same information. 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Charter §§ 2-1 1.1(b)(5) and is subject to the Miami -Dade Conflict of Interest and Code of Ethics Ordinance. As a Senior Assistant City Attorney, Ms. Jackson represents the City Attorney's Office and has a duty to advise the City Commission on questions of law involving the Commission's powers and duties. including Transactional and Land Use matters such as those at issue during the May 8, 2014 City Commission Meeting. At this meeting. the Miami City Commission addressed the Flagstone agreement in order to consider approval of a new partial modification of the deed restriction offered by the State of Florida_ which would, if approved by the Citv Commission, be voted on by the Florida Cabinet at its upcoming May 13, 2014 meeting. Complainant, along with other City residents. environmental groups, and affected individuals appeared to urge the Commission to defer any decision until it could consider up-to-date traffic, environmental, and financial information, 2013 appraisals (obtained in a 2013 public records lawsuit) and 2014 appraisals which were believed to have been conducted but were not at that time public. Complainant and others informed the Commission. inter alia, that the 2013 appraisals showed that the fair market rent for the project had increased from $2 million in 2002 to S7 million in 2013. such that a Commission vote approving the agreement on May 8. 2014 would violate Section 29-B of the City Charter.' There are multiple instances during this hearing during which Ms. Jones Jackson violated the Miami -Dade County Code of Ethics & Conflict of Interest Ordinance_ the Miami -Dade County Citizens' Bill ofRights. or both. These stem from a colloquy between Commissioner Sarnoff and Ms. Jackson to give a false impression that any attempt "by any commissioner or the commission' Section 29-B of the City of Miami Charter provides: "the City Commission is prohibited from favorably considering any sale or lease of property owned by the city unless there is a return to the city of fair market value under such proposed lease or sale." 4 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk to amend the agreement would be "a breach.' of the City's agreement with Flagstone and render it liable for " S58 million." Flagstone's "documented" expenses to date: Commissioner Sarnoff: Is anv attempt to improve this agreement could result in a breach of the agreement by the City? Ms. Jackson: Flagstone would have to be willing to do that... Commissioner Sarnoff: So then any attempt to unilaterally impose by any Commissioner or the Commission to change this deal could be viewed as a breach? Ms. Jackson: Deja vu of 2011. I believe that, yes. right now a unilateral change of position is not possible by the City. I believe it would be a breach of good faith on behalf of the City. unless Flagstone was willing for it to be a mutual. But it's not something the City could unilaterally impose at this time. Commissioner Sarnoff And if we did unilaterally impose that and they held us in breach. how many millions of dollars would we be exposing the taxpayers to the City of Miami? Ms_ Jackson: My understanding is that Flagstone has in excess of 58 million. okay_ and it may be more than that. It's _just 58 is the .last documented amount that we were aware of. Commissioner Sarnotf: So a unilateral attempt by anv Commissioner or the Commission to impose upon a new term that Flagstone was unwilling to accept could essentially just about wipe out our reserves in one fell swoop? Ms. Jackson: I'm not going to comment abouithe amount of the City`s reserves_ but 1 can say- that would be a very_ very expensive potential breach. (Transcript of tvlay 8. 2014 City Commission Meeting_ at page 90.) VIOLATION I. INCOMPLETE STATEMENT AND MISREPRESENTATION OF THE GOOD FAITH PROVISION At the May 8. 2014 City Commission Meeting, during the public hearing of Resolution 14- 00430 (Agenda Item RE. 10) and Resolution 14-00431 (Agenda Item RE.11), Senior Assistant Cit1 Attorney Robin Jones Jackson either knowingly furnished false information or knowingly Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk omitted facts regarding the legal obligations created by the 2010 contractual agreement between the City ofMiami and Flagstone Development Corporation, or both. At the very least. Ms. Jackson irresponsibly and improperly asserted that the Commission and the City were under a definite legal obligation to maintain a contractual relationship with Flagstone Development Corporation in its then current, unmodified form despite the requirements of the City Charter governing leases of public land to private parties and leases to private parties on public waterfront land on Watson island. Ms. Jackson had reason to believe that prior to May 8, 2014, Flagstone had already been in breach of contract due to delinquencies in payments, including fees it should have paid to the State from 2012 to the date of the meeting were being held in escrow with the law firm of Shutts and Bowen. Flagstone missed the deadline to pay those fees in January 2012, and proffered them only after the State terminated the deal, at which time the State refused the funds. and other ohligations. As Ms. Jackson must have known. the City would have been relieved of any good faith obligation if Flagstone had breached the contract due to failure to perform its contracted -for obligations. Rather than raising the possibility that Flagstone's previous defaults could absolve the City of any good faith obligation and provide the City with a legal defense in a possible lawsuit brought by the developer. Ms. Jackson stated unequivocally that a change of position would be a breach of good faith by the City. Ms. Jackson's failure to provide a proper. full, legal analysis was either knowing and intentional and tantamount to misleading,the Commissioners. or the result of culpably irresponsible selective disclosure concerning the applicable provisions of the governing agreement. knowing that the Commissioners would rely on her "advice." for the purpose of inducing them to believe the City would be liable to Flagstone for S58 million if they voted no. 6 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk 'VIOLATION 2. KNOX '1 G MST iTEMEN f AS TO THE AMOUNT OF THE C1T ' POTENTIAL LIABILITY In response to a question posed by Commissioner Marc Sarnoff regarding the financial liability that the City might expose itself to should it attempt to modify the agreement between the Citv and Fiagstonc. Ms. Jackson asserted that the City would he liable for S58 million dollars or mrije should It attempt such a modification. In response to two Public Records request for documents - one to the Citv and one to Ms. Jackson personally - the City' and Ms. Jackson supplied the same records to Complainant. The records produced do not `document`_ t 58 million in expenses by l'ltu4sione. despite the fact tlhai she affirmatively-" misrepresented the information as -documented- to the Commissioners. missioiiers. The only basis fbr that figure was a value, one-para`raph letter dated .lulu: -t_ 201 1 from the developers accountant referencing individuals and entities not under contract with the (hi. with .to supr �o ting documentation of expenses ley' either Flagstone or the other individuals and entities. If the City had such documentation, it violated Chapter 119 in not providing it. If it does not ha• e such documentation. Jackson either furnished false information or omitted significant facts in her presentation to the Commission. Moreover. if Ms. Jackson was relying_ on the .Hine 4. 2011 aCi oUntailt s letter. she further violated Section (A) (2) b1 tulinya to inform the Commission that the ..S18 million- fioure included expenditures all,-aedly made by individuals and entities not under eontract \vitl the City and to whom the City owed no letttal duty. Further. it was not reasonable for Ms. Jackson to purport that the City would he liable for 358 million or more if it breached the "mood faith clause of the contract because that provision `. is not inserted into the contract until the renewtiation in 2010. (See transcript_ Pa'. e 89.) oreover_ with the agreement having been -totally renegotiated.. in 2010 (Ms. Jackson's words). ails financial costs incurred by the developer prior to the 201 0 renegotiation would have been yvholiV at the rise: of the developer: the City could not incur retroactive liahiht'3.i , As a Senior Assistant City Attorney advising, the Commission on its le+gal ohheiluons. Ms. Jackson had a duty to provide t71f material facts concerning the City s potential exposure. Instead. Ms. Jackson iril'•ly and unequivocally stated that the Gets would be liable foe' 3?ci million dollars Or more if it 7 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk 'tteIIIpte°d to amend the agreement to confoIm to the requirements of the City Charter and FIaustone-s original response to the City's Request lbr Proposals (UP ). Siwiifiea:v.1v, two members of the City Commission stated on the record That they believed hey; were required to vote in favor of the resolution to accept the proposed deed restriction from the State and re -approve the F'laustone project on Ni1av S. 2014, based on the law department's representation that the City had a "good faith obligation" to �_ive Flagstone until June 2. 2014 to commence construction_ and that the City would be liable for $5$ million to Flagstone if the measure failed. ( [ ranscript. at 92-93 LOLA ION 3. FAILURE TO APPRISE THE PUBLIC OF FLAGSTONE'S WAIVER Ms. Jackson also failed to apprise the Commission and the public that under Section 7.5 of the Amended and Restated Agreement to Enter into Ground Lease. Flagstone waived any claims against the City arising out of the agreement "as a material inducement' for the City to enter into the 2010 amendments: 7.5 As a material inducement for City to grant the License(s) or the Easement(s). Flagstone does hereby release, waive, discharge. covenant not to sue, acquit, satisfy and forever discharge City and its officers, directors, employees. agents and attorneys and the affiliates and assigns of all of the foregoing of and from any and all liability. claims, counterclaims. defenses. actions. causes of actions, suits. controversies. agreements. promises and demands whatsoever, at law or in equity. which Flagstone or any of its members, officers, directors, employees. attorneys and agents and the affiliates and assigns of all of the foregoing had, now has, or hereafter can, shall or may have against City or its officers, directors, employees, attorneys and agents and the affiliates and assigns of all of the foregoing, for, upon, or by reason of any matter cause or thing whatsoever arising out of the Licensees} or the Easernent(s). the Pre -Development Work andior Flagstone's use of the Property. Ms. Jackson's failure to advise the Commission of ALL of the applicable provisions of the agreement must be presumed to be "knowing" because she knew the Commission would rely on her advice, and two commissioners expressly said so. 8 Submitted into the public record for item(s) CA.7 on 04128/2016, City Clerk VIOLATION 4. FAILURE TO DISCLOSE THE INCONSISTENCY OF THE CITY CHARTER Ms. Jones Jackson knowingly omitted the critical legal issue of the relevance of the Cite Charter. At the time of the May 8.. 2014 meeting. the City had in its possession a 2014 appraisal (and 2013 appraisals) showing that the current appraised rent should have been $7.2 million dollars, versus the contract's provision of $2 million. Section 29-B of the City Charter provides that the City Commission is prohibited from favorably considering any sale or lease of property owned by the city unless there is a return to the city of fair market value under such proposed lease or sale.' At the May 8 hearing. complainant informed the City Commission that the 2013 appraisals showed the value of the Flagstone parcel had increased 400%. and that the minimum fair market rental in 2014 was over $7 million, instead of the $2 million minimum annual guaranteed rent provided in the Flagstone agreement, and that any approval of a lease for less than fair market rent would violate Section 29-C of the City of Miami Charter. izt;ui.11. (I.on )., d .. at 81-87. The 2013 appraisals were placed into the official Commission meeting record. Id. at 78 and 95.-' On August 15, 2014, Complainant was forced to bring a new civil action against the City of Miami under section 119.07(1), Florida Statutes. because the City had refused to produce any public records about the Flagstone Project dating back to May 5, 2014. One of the documents the City produced under Court Order was an email from one of the appraisers the City retained in 2014 dated May 5.. 2014, with a memorandum titled "Appraisal — Flagstone — Market Comparison 2002 vs. 2014." It was emailed by the appraiser Joseph Hatzell to Public Facilities Director Henry Torre on May 5, 2014, showing that Fair Market Rent on the Flagstone parcel increased from S1.89 million in 2002 to 87.26 million in 2014. This document was in the City's possession at least three clays before the May 8, 2014 Commission meeting. 9 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk This fact was known to Ms. Jackson and Ms. Jackson failed to advise the Commission that by voting for resolution, the Commission would be violating Section 29-B of the City Charier. VIOLATION 5, PROFFER OF LEGAL ADVICE WITHOUT EVIDENCE OF PROPER LEGAL ANALYSIS AND DETERMINATION Beyond Ms. Jackson's apparently knowing misstatements or purposeful omissions of facts related to the City's contractual obligations to Flagstone, there was an exchange during the May 8_ 2014 Commnission Meeting that raises questions as to whether Ms. Jackson's legal advice and comments were wholly based on her own legal analysis or whether her comments were guided by at least one member of the City Commission. In her statements on the record, Ms. Jackson asserted that the City was bound by a good faith obligation to perform under the agreement with Flagstone: that Flagstone had fully complied with the terms of the agreement, including its financial requirements_ and that the City would effectively be in breach of contract if it attempted to modify the agreement terms. thereby exposing itself and taxpayers to substantial financial liability in the amount of at least $58 million dollars. Moments before making the aforementioned statements and during the actual Commission meeting, Ms. Jackson was approached by Commissioner Marc Sarnoff who engaged her in a private off-the-record conversation, as can be viewed in the video recording of the meeting. Commissioner Sarnoff then returned to his seat and directed questions to Ms. Jackson that were clearly posed to elicit specific responses about the inability to unilaterally modify, the agreement and the $58 million dollar liability that would result in any attempt by the city to modify the agreement. At the very least, the off-the-record interaction between Commissioner Sarnoff and Ms. Jackson, which immediately preceded their on -the -record exchange gave the impression that Ms. Jones Jackson was instructed on what she subsequently said to the Commission and may have 10 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk felt obligated to make her comments by the relevant power positions of the two individuals. See Cll. Commission i4-t)5-0'_ \ cih:ain ,ilt!tes t'..on'`' ).o i KNOWING 'VIOLATIONS OF COUNTY ORDINANCES The statements and omissions by Ms. Jackson satisfy any requirements of "knowingly" or "intentionally" making. false statements or withholding material information. Ferrell Jewellers qf' Tampa, Inc. r. Southern Mill Creek Products Co., 205 SO.2d 657 (Fla. 1968)("it is unnecessary to plead inferences or facts necessarily implied from other facts stated, as to a matter peculiarly within the knowledge of an adversary."); Metia v. Jurich, 781 So.2d 1175 (Fla. 3d DCA 2001)("where the person expressing the opinion is one having superior knowledge ofthe subject ofthe statement and the plaintiff can show that said person knew or should have known from the facts in his or her possession that the statement was false. then the opinion may be treated as a statement of fact."): ,5'rotnecreek r. Wells Faro Bank, N.4., 2013 WI. 5416970 (S.D. Fla. Sept. 26. 2013)("Malice, intent. knowledge_ and other conditions of a person-s mind may be alleged generally.... Rule 9(b)"s heightened pleading standard may be applied less stringently, however, when specific factual information about the fraud is peculiarly within the defendants' knowledge or control."). Further, the duties and responsibilities of legal counsel are even greater, as the very purpose of the job is to provide advice on which the Commissioners can rely. She did not. RELEVANT LINKS 5/812014 CITY OF MIAMI CITY COMMISSION MEETING AGENDA: 5/8/2014 CITY OF MIAMI CITY COMMISSION MEETING TRANSCRIPT: -15 __ �r}�'_ '__-`� y`iZI 1n>1titiir,_I ii'.?u'ez 11 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk 5/8/2014 CITY OF MIAMI CITY COMMISSION MEETING VIDEO RECORDING: r corn: /kci id---53S [The video stops before the Watson Island Agenda item begins.] 12 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Miami -Dade Commission on Ethics & Public Trust Report of Investigation Investigator: Sylvia Batista Case: K15-058 C15-027 Case Name: Date Opened: , Z ACM( 0 7 , r lzms:a` Complainant(s): Stephen E. Herbits, Subject(s): Robin Jones Jackson. Allegation(s) and Background: On October 28, 2015, Stephen E. Herbits (Herbits) filed a complaint alleging violations by City of Miami Senior Assistant City Attorney Robin Jones Jackson (Jackson) involving incorrect or misleading statements made by Jackson at the City of Miami Commission meeting held on 05/08/14 (the "Meeting"). Complainant informed that Jackson asserted the official position of the City Attoxney's Office allegedly without conducting due diligence or reasonable legal inquiry with regard to several points involving the contractual obligations between the City of Miami and Flagstone Island Gardens, LLC (Flagstone). According to Complainant, at the Meeting Jackson spoke regarding two resolutions related to the Watson Island Project and the agreement between the City of Miami (the City) and Flagstone (the Agreement).1 Resolution (14-00430) was to exectartiaLtnodification of the original restriction to Deed No. 19447-8 between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (the State) and the City. The second resolution (14-00431) was to ne otiate and execute a compliance agreement between the City and Flagstone (the "Resolutions' ti e meeting, the City Commissionion addressed the Agreement in order to consider approval of the new partial modification of the deed restriction offered by the State, which, if approved by the City Commission, would be voted on by the Florida R�r :7rra T'soa 1 There are two agreements, both of which have been amended several times —an "Agreement to Enter Ground Lease" and a "Ground Lease." As far as the rent payable by Flagstone is concerned, both agreements cross-reference, repeat and incorporate the same terms based on the original Agreement to Enter Ground Lease (2003), amended in September 2010 when the City allowed Flagstone to develop in phases, but did not conduct a new appraisal and did not change the basic rent based on 2002 appraisals. The two agreements are formally known as the Amended and Restated Agreement to Enter into Ground Lease dated 2/1/10, and the Amended and Restated Ground Lease. 1 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Cabinet at its meeting scheduled for 05/13/14. Complainant, along with other City residents, environmental groups, and affected individuals appeared and urged the Commission to defer any decision until it could consider up-to-date information, including 2013 and 2014 appraisals which were believed to have been conducted, but had not been made public. Complainant and the other attendees informed the Commission that the 2013 appraisal showed that the fair market rent for the property had increased from $2 million in 2002 to $7 million in 2013, thus a vote approving the A;reement would violate Section 29-B of the City Charter.2 Complainant informed that during the Meeting, Jackson, who has a duty to advice the City Commission on questions of law, including matters such as those at issue at the Meeting, erred or misrepresented facts in the following ways: 1. Jackson claimed that if the Commission amended the Agreement with its vote, the City would be in breach of the Agreement and thereby liable for $58 million, the amount of Flagstone's documented expenses. Complainant asserts that this is not an accurate statement based on the City Charter alone. The Commission did not have the authority to approve any agreement that would result in a lease of public land for less than fair market value. The Commission's rejection of the Resolutions would not have been a breach of the Agreement because the Agreement, as amended, incorporated the fair market value requirement, which was violated by the 2014 resolutions. Complainant informs that at the Meeting he cited and placed into the record the 2013 appraisals showing that the fair market rent had increased from $2 million in 2002 to over $7 million in 2013. Therefore, the question asked by the Commission which Jackson did not answer is whether the vote the were about to take violated the er ecause it would give favorable consideration to the Agreement for less than fair market value. In reference to the sum cited by Jackson, Complainant informed that, other than ledgers showing about $5 million in fees paid by Flagstone since 2001, the only City record purporting to show Flagstone's expenses was a one -paragraph letter from Flagstone' accountant (the "accountant's letter"). The accountant's letter dated 06/24/11 cites $53.5 million and other financial figures not relevant to Jackson's claimed liability for the City, while the transcript of the Meeting confirms that Jackson said the liability would be $58 million. The impression given by Jackson to the City Commission was that her fi u e w s rl,ctantiated when in fact there are no City records which support the accuracy of the figures cited by Jackson! 2. Jackson asserted that the City would be held liable for the expenditures accrued prior to September 2010, which is t e tune that the Agreement was amended with new terms 2 Section 29-Bof the City of Miami Charter provides: "the City Commission is prohibited from favorably considering any sale or lease of property owned by the city unless there is a return to the city of fair market value under such proposed lease or sale." 3 The transcript of the Meeting confirms that Jackson said $58 million, however, the accountant's letter cites $53.5 million and other financial figures not relevant to the claimed liability for the City. Nevertheless, Complainant has not received any documentation in support of either number despite voluminous documents provided pursuant to Complainant's public records request for records supporting her statements at the Meeting. 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk and a "good faith" clause. Complainant affirms that the City would not be held liable for expenditures accrued by Flagstone prior to the Agreement's amendment as a matter of law. 3. Jackson did not disclose to the City Commission that Flagstone had breached its side of the good faith clause of the Agreement by failing to satisfy outstanding judgments and making required payments to the State thereby causing the State to terminate its approval in 2012. Complainant informs that Flagstone' breach effectively ends the City's obligations under the Agreement. 4. Jackson did not disclose to the City Commission that the Agreement contains a hold harmless clause, in which Flagstone agreed to waive claims against the City "as a material inducement" for the City to enter into the Agreement. 5. Jackson did not provide the City Commission with existing professional appraisals demonstrating that the fair market rent for the property had increased from $2 million in 2002 to $7 million in 2013 during the portion of the Meeting when the subject of the requirement that lessee be charged rent at market value was raised by Commissioners. Complainant cited the City's requirement that any lessee, in this case Flagstone, be charged rent at fair market value which at that point in time had increased considerably. However, Flagstone' payments under the Agreement remained the same. Several Commissioners stated that they were not aware that recent appraisals had been prepared. Complainant asserted that one Commissioner raised the issue with the City Manager. 6. Jackson did not inform the City Commission that their vote in favor of the Resolutions would ratify the Agreement at below market value in violation of Section 29-B of the City Charter. Complainant concluded that two City Commissioners stated on the record that they voted in favor of the Resolutions in reliance of Jackson's legal advice, and a third City Commissioner had already stated his opposition to the Resolutions. If Jackson had not made the above -referenced misrepresentations or material omissions at the Meeting, the vote would have been at least 3 to 2 against approval of the Resolutions. 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Relevant Law: Miami -Dade County Home Rule Charter, Citizens Bill of Rights Sec. (A)(2), "No County or municipal official or employee sh information on any public matter, Qr knowin requested information to members of the public." flowingly furnish false acts when giving Investigation Interviews: 02/01/16 — Robin Jones Jackson, Assistant City Attorney, City of Miami — Respondent Robin Jones Jackson (Jackson) appeared at the COE and provided her statement in the instant case filed by Stephen Herbits for an alleged violation of the Citizens' Bill of Rights. Present at the interview was Jackson, her attorney, Vivian Reyes, Advocate, Michael Murawski, Investigator Sylvia Batista and COE Attorney Martha Perez. Jackson said that it was a little difficult to fully understand what some of the allegations in the .ethics .complaint . were,.. but.. she ...is.. glad -to_provide.the --CO.E-with.- every -bit_of information required. Jackson explained what she said on the record at the 5/8/14 City Commission meeting. Jackson said that there is a covenant of good faith and fair dealing that has been in place in the Agreement retroactive t Fehruw of 2010. Jackson said that she believed then and believes now that if at at time e rty ommrssion had unilaterally tried to change the terms of the Agreement, the City would have been operating in bad faith, something that potentially would be a breach by the City. Jackson said that there was a covenant of ;ood fait _ _which came in retroactive to February of 2010 which required that the State, the City and Flagstone approp iate_waivers of deed restrictions on the land because Watson Island and th teas are owned by the City, but are subject to a historic deed restriction that has been waived in negotiated agreements with the State over time. Jackson said that at the time that they were talking at the 5/8/14 meeting, it was actually about Flagstone's efforts to cure a problem with the State, but not necessarily a problem with E-eTit—latat had occurred in 20 0912. Jac son —Card-Mt she has the record of that explanation made by counsel to the developer, Kevin Cowan, of Shuns and Bowen. In the explanation by Mr. Cowan dated 07/02/12, he described for the Commission rh_ e efforts made to cure the problem with the tate. Jackson said that it's hard to understand that when we get to 2014 we are in fact dealing with something that occurred so long ago, but it took that long of continuous efforts between _ Flagstone and the State tom out their a eement true and correct copy .d'af the memorarrdnm m Mr. Cowan is attached here to as Exhibit A. Jackson notes that in the memorandum Mr. Cowan is providing information to an official of the state and is explaining how there was the potential problem with the State. Mr. Cowan's explanation is 4 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk also in the City Commission minutes for the meeting of 07/26/12 beginning on page 6. Jackson explained that, as reflected on the record, in 2012 when there was this circumstance, there could have been a breach by Flagstone. Had the City Commission at that time wanted to say you breached it with the State, and we want to walk away, they could have done so without appearing to be in bad faith. However, the City Commission listened, and worked with Flagstone to cure any brew ,..and those cure e arts were co �_.'_ - -. ! e way through until the time period that's there on the recor Jackson said that at the point in time when she made the statements at the meeting she believed that everyone was operating in good faith. Jackson explained that until the State actually approved the next deed waiver, which is where they were in the process of reviewing it, that cures any potential breach. So there was a constant cure effort going on from the time that the original breach had occurred. Jackson said that the information from Mr. Cowan to the State, and discussions on the record, and many minutes of City Commission meetings about how that was going forward reflect a constant effort to cure, and shows good f nd would have been bad faith by the City to remove itself iron) the Agreement because a Ci ha one o cure t e reach. Jackson said that among the documents provided, we will see some letters from City officials to the Florida cabinet and governor who were in support of allowing Flagstone to cure the breach. Among the letters from City officials there was one from Mayor Regalado and at least one or more City Commissioners also sent letters at the same time to the State in support of allowing the contract -to -continue, - Jackson stated that if the City Commission had not voted to move forward to allow Flagstone and the City to go to the State, she believes, because of the continuous efforts of both Flagstone and the City, that it would have beeniotentl�' al viewed as bad faith and a potential breach on behalf of the City because there was this ongoing effort for many years over a long period of time to cure any breach. Jackson was asked about the aim ($58 million dollars) that she stated was the amount that had been paid by Flagstone and that the City would be liable for if they did not vote to approve the resolutions. Jackson said that she based her figure on letters from Shutts and Bowen that have been sent to both the City and the State. There are letters from accountants and financial advisors from Flagstone that have been sent over timeo the City and State about the amounts that have been paid by Flagstone. The notarized letter dated 05/02/14, days before the subject meeting, from Flagstone's Chief Financial Consultant to the City, indicates that they believe they have spent in excess of $60.5 million, which Jackson said is more than the sum that she recalled at the time of the meeting. Jackson said that she based the amount that she stated at the meeting ($58 million dollars) on all of the years of information being provided by Flagstone, its legal professionals and its financial professionals to the City and to State agents. Jackson added that, if you look at the questions at the City Commission meeting, she was asked to say the cost and her reply, as she sat there thinking it through, was what she could remember from the time that she joined the City, which was July of 2004, until that moment and she knew that she had seen the accountant's letter, but could not remember the exact figure from that letter, but knew it was more than what she stated. Jackson said that we will 5 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk notice that she also said that this was her belief and understanding based on the letter. The subject letter has been given to the complainant in response to their public records request. Vivian Reyes suggested that the COE investigator review the exchange betwe-. Commissioners Suarez and Sarnoff located on page 12 of the minutes of the 7/26/12 commission meeting. There is a brief exchange between the Commissioners hers they are talking about the same issue two years before and Sarnoff actually says, "and we could be exposing the citizens of Miami to a breach of contract" Suarez replies, "of course, damages" and Sarnoff says,"in the neighborhood of $40 to $50 million." Jackson said that the infomn t;mn . ate • ___9 a Commissioners did not come from her. It wouldhave come from Cowan, Flagstone's counsel, and Flagstone's financia a visors. Vivian Reyes said that she assumes that the Commissioners would have relied on the 07/02/12 memo from Cowan that was provided before the 07/26/12 meeting. Jackson was asked to expound on the issue of the City violating its charter by leasing the subject property at less than fair market value. Jackson said chat the question was not asked of her as counsel for the City by the City Commission. In November of 2001, when the retreat m went to the voters, the oor amount f,a-base rental payment was set. The set amount is a floor of the lease paymen4s; and not a ceiling. Jac on added that this question was not asked of her at the meeting. Jackson explained that, as Assistant City Attorney, her clients at the subject meeting were the Citiissioners. Jackson said that at the meeting she was responding to questions posed by her clients, the City Commissioners, and not by any member of the public. If you had seen some of the record there, this was not a public hearing, although people were allowed to address the issue. Jackson confirmed that she was respondinto the questions that were asked of her by her client. lacJksort sal that the o erty was being leased at a lower than fair market value in violation of the City Charter. Jackson added that if you look at al ponents of the ease, she does not believe that the property is being leased for less than fair market value because in 2014 they had not entered into the leases yet. This is part of what is difficult to understand. The amounts were set in 2001 by the voters where they set a floor of the lease payment, but not a ceiling. The amount set is only of the base rent. There are multiple components of rent to be paid to the City. Jackson added that in 2009, there was a potential default by the developer, and the City went to the City Commission to actually default the developer. The Commission however, determined to allow the developer to cure and move forward. 4iacets-of payi t. to the City were renegotiated at that time in addition to the $2 mi Lion dollar base rent. So, at the time on the meeting (May of 2014), the City had not entered into the leases yet because in approximately 2003 to 2004 there was what is called an Agreement to Enter Into Ground Lease, where they set the matters based on what occurred with the referendum, so, you have to look at the whole picture at that time. Jackson adds that she was not involved with the appraisals, or discussions of process. That is a business matter, not a legal matter. Jackson was asked whether the leases have been entered into since that time. Jackson 6 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk replied that only the marina component lease under which the developer is now building, and may have already finished, has been entered into under the original RFP and under the amended Agreement put in place in 2010, which all comports with the referendum in the original RFP for it to be developed either all at the same time or on a component by component basis. That is part of the covenant of good faith and fair dealing that was put in place in 2010. The marina lease is one out of three leases. There are two more, and in 2010 the City Commission assisted in helping to improve those components for the City. The definition of rents was renegotiated and approved, the additional percentages and types of rents was improved, additional fees if they should, at a time permitted under the Agreement, sell out part of their interest, additional fees to the City. The Agreement is multi -faceted and has a lot of history. Jackson said that she believes that the marina lease is set at fair market value, but again �e thPte an apnraisa� 1 jinn usiness = matter and she is not the person to deal with it. As you may recall, there was a down -cycle and an up-cyc e— ere are many economic factors going on with the project. r Jackson was asked whether other City attorneys have worked on the Flagstone issue with her. Jackson explained that different City attorneys have worked on different components. a cson added t a�i i she does not believe that Mr. Herbits' complaint is am h u`t her e Jackson said that she was providing to the COE the stipulation for settlement and covenants mot to sue dated..fom October of 2005 that is among Flagstone, the City, Herbits and Robert ,tkV-- Zimmerman. This document has been referenced at City Commission meetings. Jackson added that she is providing to the COE the information in the injunction case where Mr. ,3v Herbits is trying to enjoin the City from moving forward with the project, and the third P amended complaint is where Mr. Herbits amends to bring in the same violation that is the subject of her appearance at the COE today. Jackson was asked to explain what was said during her side discussion with Commissioner Sarnoff and whether she had any discussions with him prior to the meeting. Jackson said that during the side discussion, Commissioner Sarnoff was asking her whether she knew if the developer had paid all of its fees regarding a development of regional impact. Jackson said that she did not know. Again, this involves the business part, thus she asked for the planning director, Francisco Garcia, to come up to the podium and she walked through the issue of whether the developer had paid the fees with him. It is clarified on the record by Mr a t Plannin D' hat the developer had aid all fees that were regnired at . that time and that an a ere uired until o er circumstances occur Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk 02/1 ; — Marc Sarnoff, Partner at Shutts & Bowen, formerly City of Miami Co ' i issioner — Marc S off (Sarnoff) was contacted and agreed to be interviewed by the COE investigator on the i Cant case. Sarnoff was provided a copy of the Ethics Complaint filed by Herbits and of th minutes of the 05/08/14 meeting, which is the subject of the ethics complaint. Present a the interview was Martha Perez, Staff Attorney for the COE, Marc Sarnoff and Teresa Sa off, who was introduced as a paralegal at Shutts & Bowen, LLP (Shutts). Sarnoff ad sed that he served on the City of Miami Commission starting in December 2006 or January 2 7, and served until 11/25/15. Sarnoff advised that he became a partner at Shutts on 02 01/16. Sarnoff stated that Respondent, Jones -Jackson (Jackson) was the lead assistant city attorney on the issues involving the City's Agreements with Flagstone. Assistant City Attorney Barnaby Min may have been assigned to work on the Flagstone issue as well. Sarnoff explained that he was briefed at some point in time by Jackson, the City Attorney and the City Manager prior to the subject meeting. The subject resolutions were part of the scheduled agenda, therefore all commissioners were briefed prior to the meeting. The briefings are not a public record. Sarnoff explained that he was aware that Flagstone hadiailed to timely make a payment to the State, vuhiput_them-.in-arr Pgottiathia position-with-#he-State,--SarnAff stated that the sum of the late payment was between $15,000 and $75 000. Sarnoff stated that he learned from Flagstone that the payment was late due to an infirmity of its accountant. Sarnoff added that the sum of the late payment was miniscule when you consider that Flagstone had already put $60 million dollars into the project. Sarnoff stated that he knew from Flagstone itself that Flagstone was not aware that it had failed to timely make theymentto State. arnoff stated that he may ave as ced regarding any breach o o iation of the -Agreem ac on did not a , s e needed to hear that there were no tardy payments. Sarnoff said that suppose he did not agree with Jackson, she is "the law" for the City whether he was in agreement or not. Sarnoff stated that he had no reason to doubt Jackson's statement explaining that if the City breached the Agreement, they would be exposing its citizens to a liability in the sum of $50- $55 million. Sarnoff explained that unless you have knowledge that a City Attorney is lying, the City Attorney is "the law". The number stated by Jackson as the sum of the City's potential liability was consistent with the number to his knowledge. Sarnoff explained that Jackson has a reputation of being pristine, factual, proper, and conservative. Jackson has a stellar reputation and has never relayed incorrect information in the course of her employment. Jackson comes with a reputation of being accurate on details. Jackson's high level of competency was the reason that the City got a $125,000 to $150,000 payment on a matter involving Monty Trainers. Sarnoff was asked about what impact a denial of the resolutions would have had on the Agreements with Flagstone. Sarnoff said that not approving the resolutions would have been a potential breach of contract by the City that would have exposed the citizens of the City to 8 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk liability in the sum of $50 to $60 million dollars Samoff advised that the briefing was held at the District 2 Office and the City Attorney, Victoria Mendez, was present. Sarnoff stated that he would have told Jackson if any of her statements at the subject meeting were inconsistent with what was stated at the briefing. Sarnoff stated that he would only bring up a substantial inconsistency of the law as presented at the briefing and the law as presented at the meeting. Sarnoff was asked about the contents of the "side discussion" which he had with Jackson during the meeting. Samoff did not reca 1 what was said during the side discussion. Sarnoff stated that he did not feel at any point that Jackson was giving false information to the Commission. Sarnoff explained that Jackson is not capable of knowingly misrepresenting inforrmafi n. Jackson is not likely to be negligent. She is an old-fashioned lawyer, very thorough. Her statements were "law" Sarnoff explained that after a briefing, yc u start the process of forming an opinion on the issue, so it is unsettling if you hear others who have garnered different information. As commissioners, they don't get to dispute what she is saying —"she is the law". In this case, there were no deviations in her statements at the meeting from her statements at the briefing. Sarnoff was asked about his present posi- ion as a partner with Shutts. Sarnoff stated that nItim-in-Jantiary-cf_2016_and-hc-startecl-at-Shutts-in-February-2016.-- Samoff did not discuss his future plans 'plans IA ith Shutts while still a City of Miami Commissioner. Sarnoff advised that complainant Herbits had filed a bid as principal of the number two bidder on the Watson Island project. He thinks the number two bidder may have been Swerdlow. ,._ Documents Reviewed: The following meeting minutes were provided by Jackson to demonstrate that the issues involving the Agreement between the City and Flagstone have been extensively discussed by the City Commission. Tie following are excerpts from the 07/26/12 meeting which sheds further light on what transpired at the 05/08/14 meeting, which is the subject of the instant case. 07/26/12 - City of Miami Commission meeting minutes where a resolution to authorize the City Manager to execute the second amended and restated partial modification of restrictions to deed no. 19447-F in relation to the Second Amended and Restated State Partial Waiver between the State Board of Trustees and Flagstone. The resolution was 9 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk approved by the following vote: Ayes: 4 — Commissioner(s) Gort, Sarnoff, Suarez and Spence -Jones; Noes: 1— Commissioner Carollo • Carollo asked Henry Torre (Torre), Director of Public Facilities whether the resolution has any financial impact, and was told that it would not, that it had been approved before, but was terminated due to a technical default by Flagstone. The technical default occurred when Flagstone did not make a payment to the State which was required in January. Flagstone subsequently made the payment and is working directly with the State. (pg. 2 — pg. 3) • Torre continues to explain that Flagstone has been in negotiations with the State to cure the default. Carollo comments that since the State will be renegotiating with Flagstone, they will try to get a better deal. Carollo asks why the City does not do the same. (pg. 3) • Commissioner Gort asks whether Flagstone is in default with the City. Commissioner (Chair) Suarez and Torre advise that they are not. (pg. 3) • Commissioner Carollo ponders the question and says that he believes that they are in default —that part of the deal was that they had to cure all issues, and one was the issues with the State. (pg. 4) • Commissioner Carollo asks why the City does not renegotiate for a better deal, and adds that the issue is obviousl comin• back for some type of approval because they defaulted with the State. (pg. 4) • Torre replies that they have, but adds that since Flagstone has not defaulted with the City, the City does not have the opportunity to go back and renegotiate. (pg. 4) • City Attorney Julie Bru (Bru) explains that with respect to the City, there is an agreement to enter that has cure periods and notice provisions. The City has not provided any notice of default. Bru defers to Flagstone's counsel and to Jackson. (pg. 4) • Commissioner Carollo requests clarification from Jackson as to whether Flagstone had been in default, and the City did not provide them with notice, or that they were never in default. (pg. 4) • Jackson clarifies the issue by explaining that the agreement between Flagstone and City has a covenant of fair dealing and good faith. As soon as Flagstone knew they were in default to the State, they immediately started a cure, and were in constant contact with State and the City. The City does not have an absolute requirement to default them. The City is bound by noticing cure periods and an expressed covenant. In order to default Flagstone, the City would need for them to not be operating in good faith, not trying to cure their default with the State. (pg. 4) • Commissioner Carollo clarifies that his question goes back to the cure period for previous liens and issues. (pg. 4) • Jackson states that Flagstone is not in default with the City because they have an escrow deposit agreement. There are no defaults to the City under its provisions. The state has different requirements... so there's no default to the City, but they were in default to the State. (pg. 5) 10 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk • Commissioner Carollo asks whether being in default with the State in essence makes them in default with the City because part of the Agreement was that they would cure all liens and would not be in default with any other agency. (pg. 5) • Jackson replies that they are not because the default to the City would mean that they did not cure with the State and they started to immediately cure with the State. The City would have an opportunity over time if Flagstone had not cured with the State. (pg. 5) • Commissioner Carollo asks whether there was a time when they had not cured with the State that they were in default with the City. (pg.5) • Commissioner Suarez remarks that Flagstone is coming to them right now because they are making a good faith effort to comply with the State. (pg. 5) • Jackson confirms that Commissioner Suarez's statement is correct. (pg. 5) • Commissioner Suarez adds that if the City prohibits Flagstone from curing with the State, then its actions can be perceived as not being in good faith. (pg. 5) • Jackson replies that Commissioner Suarez is correct because of the expressed covenant that the City and Flagstone have. (pg. 5) • Commissioner Carollo remarks that they are missing the point —they are not allowing them to act in good faith because they did not cure...they missed the payment to the state. (pg. 5). • Flagstone's attorney Cowan explains that there was never a time or a period where Flagstone was in default under the City documents, that they could have given us rinfine, nr caaractimme.rliafelv (na�rril • Attorney Cowan said that they believe Flagstone's failure to pay was an oversight of the State as well as Flagstone's. (pg. 6) • Commission Carollo said that he does not see the oversight on the part of the State. Maybe they could have notified Flagstone of their failure to pay a little quicker.(pg.7) • Commissioner Carollo said that they've been waiting since 2001, and are still waiting for the first block to turn —the State is using this default to renegotiate better terms. If the State renegotiates better terms, it's going to be a greater burden on Flagstone and it might be harder for them to pay the City in the future. (pg. 8) • Commissioner Suarez explains his perspective. The State's rights are different from the City's rights. The City has to allow Flagstone to cure, so the City does not have the same leverage that the State has. If the City had the same leverage then they could renegotiate, but since they don't have the same provisions in their contract, they can't do it. (pg. 8) • Jackson agrees that this is legally correct. (pg. 8) • Commissioner Sarnoff presents his argument against putting Flagstone in default and cautions that renegotiating to try to extract the last pound of flesh from Flagstone might put them in default with the City. (pg. 9) • Commissioner Sarnoff argues that what the City has to do is live up to what they have already negotiated in the Agreement. If the City honors its commitments, Flagstone will honor their commitments to the City. (pg. 9) • Commissioner Carollo confirms that this is what he is saying. At the time of the referendum (2001) Flagstone stated that the City will be receiving $2 million in revenues, and they are not receiving it. Flagstone should honor its commitments. (pg. 9) 11 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk • Commissioner Sarnoff tells Commissioner Carollo that he is not factoring in that Flagstone has gone through a five-year lawsuit which threw them out of time. (pg. 9) • Commissioner Carollo asks why the City should pay for that. (pg. 9) • Commissioner Sarnoff says that they have to live up to what their predecessors have done. (pg. 9) • Commissioner Sarnoff continues by saying that when their opportunity comes to make changes, you do the best you can, but he does not think the opportunity presents itself here. (pg. 10) • Commissioner Carollo says that there were changes that they could have made that the Commission did not make. It seems like another government took the opportunity that maybe the City Commission should have taken before. (pg. 11) • Commissioner Carollo says that there was a lot of negotiations and they got a better deal. (pg. 11) • Commissioner Suarez says that they voted on it and made a policy decision. On the decision that they have in front of them, if they deny it Flagstone would have a good argument that they are not acting in good faith because they have an obligation to act in good faith to help them cure. It's not an obligation to renegotiate. Maybe it could have been done that way when they extended the contract last time, but they did not. There are different obligations between the State and Flagstone and the City and Flagstone. This has to be clear so there is no misunderstanding on what's going on here today. (pg. 11) Commissioner Suarez as s ackso o txt� nr �n we not 1zaye .a t + d faith to allow them to cure? (pg. 12) • Jackson replies that they do have such duty because of an expressed written covenant. (pg. 12) • Commissioner Suarez asks —so if they fail to act, would they be in breach of contract? (pg. 12) • Jackson replies, yes, but she does not want to make that argument. (pg. 12) • Commissioner Sarnoff asks that they would be exposing the citizens of Miami to a breach of contract. (pg. 12) • Commissioner Suarez agrees and adds, "damages." (pg. 12) • Commissioner Sarnoff agrees and adds, damages in the neighborhood of $40 to $50 million. (pg. 12) • Commissioner Suarez says that in their effort to be tough negotiators, they could end up having an unintended consequence that could be far worse. (pg. 12) 05/08/14 — City of Miami Commission meeting minutes reflect that Jackson's presentation included the following statements: •"I believe then that at this time that we do not have a circumstance where Flagstone has not fulfilled the conditions precedent upon which they are obligated at this time to fulfill..." (pg. 89); •"The whole thing was totally renegotiated at that time in 2010 and 2011. At that time, they could have renegotiated for update appraisals. That did not occur." (pg. 89); •Commissioner Sarnoff asked, "Is any attempt to improve this agreement could result in a 12 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk breach of the agreement by the City?" Jackson replied, "Flagstone would have to be willing to do that, and I've said this to you previously in past years. At a point in time where there is no breach —and I didn't know until I asked Mr. Garcia the question on the record, because I was not aware of the DRI fees —that there does not appear to me to be any breach, so Flagstone would have to be willing to do that..." (pg. 90); •Commissioner Sarnoff asks again, "So then any attempt to unilaterally impose by any Commissioner or the Commission to change this deal could be viewed as a breach?" Jackson replied, "I believe that, yes, right now a unilateral change of position is not possible by the City. I believe it would be a breach of good faith on behalf of the City, unless Flagstone was willing for it to be a mutual. But it's not something the City could unilaterally impose at this time." (pg. 90) •Commissioner Sarnoff asked, "And if we did unilaterally impose that and they held us in breach, how many millions of dollars would we be exposing the taxpayers to the City of Miami?" Jackson replied, "My understanding is that Flagstone has in excess of $58 million, okay, and it may be more than that. It's just 58 is the last documented amount that we are aware of." (pg. 90); •Commissioner Sarnoff rewords his question to Jackson, "So a unilateral attempt by any Commissioner or the Commission to impose upon a new term that Flagstone was unwilling to accept could essentially just about wipe out our reserves in one fell swoop?" Jackson replies, "I'm not going to comment about the amount of the City's reserves, but I can say that it would be a very, very expensive potential breach." (pg. 90); 07/02/12 —Memorandum from Flagstone counsel, Kevin Cowan (Cowan) of Shuns & Bowen LLP to Alfred Dougherty, Deputy Secretary- Lands & Recreation, Department of Environmental Protection, State of Florida. Cowan's Memorandum is an Executive Summary of history and key points pertaining to Board of Trustees of Internal Improvement Trust Fund (the "Board") Approval and the Flagstone mega yacht hotel/retail transaction. 06/24/11— Letter from Thomas W. Mullen, CPA, regarding Flagstone. The accountant's letter states that Flagstone's financial statements and tax returns reflect a capitalized investment of $53,521,150 as of 12/31/I0. The letter further explains that most of the sum has been financed by capital and loan investments from Mehmet Bayraktar and related family members through controlled entities, and that as of 12/31/10, Flagstone's capital account was $22,829,168 and the loans from the Bayraktar family through those entities totaled $21,864,214. 06/09/14 — public records request from attorney Samuel Dubbin (Dubbin) on Herbits' behalf to Jackson requesting copies of all documentation supporting the following statement made by Jackson at the Meeting: "My understanding is that Flagstone has in excess of $58 mullion and it may be more than that. It's just $58 million is the last documented amount we were aware of." 13 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Conclusion: This report of investigation has been forwarded to the Advocate for a probable cause determination. Date: Syl is 'Vista; COE Investigator 14 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk PROBABLE CAUSE MEMORANDUM To: Miami -Dade County Commission on Ethics and Public Trust From: Michael P. Murawski, Advocate Re: C 15-27 (Stephen Herbits v. Robin Jones -Jackson) Date: March 2016 Recommendation: A finding of No Probable Cause should be entered in the above -captioned matter. Probable cause exists where there are reasonably trustworthy facts and circumstances for the Commission on Ethics & Public Trust (COE) to conclude that Respondent should be charged with a violation of Section (A) (2) of Miami - Dade County's Citizens' Bill of Rights. Background and Investigation: This complaint was filed by Stephen Herbits (Herbits) on October 28, 2015, against City of Miami Assistant City Attorney Robin Jones -Jackson (Jones -Jackson). Herbits alleges that Jones -Jackson violated Section (A) (2) of the Citizens' Bill of Rights Truth in Government provision, which states, in pertinent part that: "No County or municipal official or employee shall knowingly furnish false information on any public matter, or knowingly omit significant facts when giving requested information to members of the public." Herbits claims the violation occurred during a City of Miami Commission meeting on May 8, 2014. By way of background, in November 2001, the voters of the City of Miami passed a referendum allowing the City to enter into an agreement with a development company called Flagstone Island Gardens LLC. ( Flagstone). The development agreement ultimately proposed required Flagstone to develop certain waterfront property owned by the City into a marina, hotel and shopping area. After the referendum passed, there were two agreements the City entered into on or about 2003, both of which have been amended several times over the years- an "Agreement to Enter Ground Lease" and a "Ground Lease." As far as the rent payable by Flagstone is concerned, both agreements cross-reference, repeat and incorporate the same terms based on the original Agreement to Enter Ground Lease (2003), which set the rent at $2 million dollars per year. Due to a downturn in the economy beginning in approximately 2008, the City amended its agreement with Flagstone in September 2010 to allow Flagstone to build the 1 Submitted into the public record for item(s) CA.7 on 44 28 2016, City Clerk development in phases, and did not change the basic rent of $2 million per year. The two agreements are formally known as the Amended and Restated Agreement to Enter into Ground Lease dated 2/1I10, and the Amended and Restated Ground Lease. Additionally, there are certain agreements between Flagstone and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida concerning a restriction to Deed No. 19447-8 between the State and the City. Complainant alleges that at the May 8, 2014 City Commission meeting, Jones -Jackson made incorrect or misleading statements and failed to conduct due diligence or reasonable legal inquiry with regard to several points involving the contractual obligations between the City of Miami and Flagstone as contemplated in two (2) issues on the agenda involving Flagstone: • Resolution (14-00430) was to execute the partial modification of the original restriction to Deed No. 19447-8 between the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (the State) and the City • Resolution (14-00431) was to negotiate and execute a compliance agreement between the City and Flagstone. Resolution14-00430, if approved by the City Commission, would goto the Florida Cabinet at its meeting scheduled for May 13, 2014. Complainant, along with other City residents, environmental groups, and affected individuals appeared and urged the Commission to defer any decision on this Resolution. With respect to Resolution 14-00431, Complainant's position is that the fair market rent for the property had — increased from $2 million in 2002 to $7 million in 2013, thus a vote approving the Agreement would viola. Section 29-B of the City Charter.' In summary, Complainant sets forth certain legal positions which are in conflict with the City's. These differences of opinion do not mean that the Complainant is "right" and that Jones -Jackson is "wrong" or that Jones -Jackson knowingly gave false information or omitted significant facts. Complainant makes a laundry Iist of allegations against Jones -Jackson maintaining that, during the May 8, 2014 Commission Meeting, Jones -Jackson erred or knowingly misrepresented facts in the following ways: Allegations 1, 2 and 3, collectively referred to as the "fair market value" allegations: 1. Jones -Jackson claimed that if the Commission amended the Agreement at the May 8, 2014 meeting (by unilaterally increasing the rent), the City would be in breach of the Agreement and thereby liable for $58 million, the amount of Flagstone's documented expenses. Complainant asserts that Jones -Jackson's statement is not accurate based on the City Charter. Complainant further asserts that the Commission did not have the authority to approve any agreement that would result in a lease of public land for less than fair market value. In fact, he added that the Commission's rejection of the Resolutions would not have been a breach of the Agreement because the Agreement, as amended, incorporated the fair market value requirement, which was violated by the 2014 resolutions, according to Complainant. 2. In relation to the aforementioned allegation, Complainant further asserts that, at the meeting, he cited and placed into the record the 2013 appraisals showing that the fair market rent had increased from ' Section 29-B of the City of Miami Charter provides: "the City Commission is prohibited from favorably considering any sale or lease of property owned by the city unless there is a return to the city of fair market value under such proposed lease or sale." 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk $2 million in 2002 to over $7 million in 2013. Therefore, the question asked by the Commission which Jackson did not answer was whether the vote they were about to take violated the Charter because it would give favorable consideration to the Agreement for less than fair market value. 3. In relation to the two previously stated allegations, Complainant also alleges that Jones -Jackson did not provide the City Commission with existing professional appraisals demonstrating that the fair market rent for the property had increased from $2 million in 2002 to $7 million in 2013 during the portion of the Meeting when the subject of the requirement that lessee be charged rent at market value was raised by Commissioners. Allegations 4 and 5, collectively referred to as the -"good -faith clause" allegations 4. Complainant alleges that Jones -Jackson claimed that the City would be held liable for the expenditures -accrued by Flagstone prior to September 2010, which is the time that the Agreement was amended with new terms and a "good faith" clause. Complainant disagrees and contends that the City would not be held liable for expenditures accrued by Flagstone prior to the Agreement's amendment as a matter o_flaw. 5. In relation to Allegation #4, Complainant further alleges that Jones -Jackson failed to disclose to the City Commission that Flagstone had breached its side of the "good faith" clause of the Agreement by failing to satisfy outstanding judgments and making required payments to the State thereby causing the State to terminate its approval in 2012. Complainant asserts that Flagstone' alleged breach effectively ends the City's obligations under the Agreement. Allegation 6, referred to as the "hold harmless clause" allegation: 6. Complainant alleges that Jackson did not disclose to the City Commission that the Agreement contains a "hold harmless" clause, in which Flagstone agreed to waive claims against the City "as a material inducement" for the City to enter into the Agreement. Respondent, Jones -Jackson was interviewed by a COE investigator. She stated that, although it was a little difficult to fully understand the nature of the afore -stated allegations, she was glad to provide the COE with every bit of information required. Jones -Jackson explained that the May 8, 2014 meeting was about Flagstone's efforts to cure a problem with the State, but not necessarily a problem with the City. She explained that there is a covenant of good faith and fair dealing that has been in place in the Agreement with Flagstone retroactive to February 2010. Jackson said that she believed then and believes now that if at that time the City Commission had unilaterally tried to change the terms of the Agreement (i.e. by raising the rent from $2 million per year to $7 million per year), the City would have been operating in bad faith, something that potentially would be a breach by the City. Whereas Complainant maintains that Flagstone's breach with the State (by failing to pay certain fees) allows the City to pull out of the Agreement, Jones -Jackson and the City's position is that because Flagstone was in negotiation to cure the alleged breach, the City was obligated to allow them to do that, if not, the City would be in breach. Therefore, Jones -Jackson's advice to the City Commission was that, if it had not voted to move 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk forward to allow Flagstone and the City to go to the State, she believes, because of the continuous efforts of both Flagstone and the City, that it would have been potentially viewed as bad faith and a potential breach c behalf of the City because there was this ongoing effort for many years over a long period of time to cure any breach. With respect to the "fair market value" allegations and specifically, the issue of the City possibly being in violation of the Charter by leasing the property at less than fair market value, Jones -Jackson stated that, if you look at all the components of the lease, she does not believe that the property is being leased for less than fair market value because in 2014, they had not entered into the leases yet. This is part of what is difficult to understand. There are multiple components of rent to be paid to the City. In November of 2001, when the referendum went to the voters, the floor amount of a base rental payment was set. The set amount is a floor of the lease payments, and not a ceiling. Jones -Jackson added that this question was not asked of her at the meeting. With respect to the "good faith clause" allegations (Allegations 4 and 5), Jones- Jackson clarified that at the point in time when she made the statements at the May 8, 2014 meeting, she believed thateveryone was operating in good faith. Jackson explained that until such time when the State actually approved the next deed waiver, (which the Florida Cabinet was going to vote on after the City approved the Resolution), they were still in a "review" posture which would cure any potential breach. Hence, there was a constant effort to care going on from the time that the original breach had occurred. Jones -Jackson provided letters from City officials to the Florida Cabinet and Governor showing support in allowing Flagstone to cure the breach. Among the letters from City officials there was one from Mayor Regalado and at least one or more from City Commissioners in support of allowing the contract to continue Jackson added that, if you look at the questions posed at the City Commission meeting, she was asked to state the cost and her reply, as she sat there thinking it through, was based on what she could remember from the time that she joined the City (which was July of 2004) until that moment and she knew that she had seen Flagstone's accountant's letter, but could not remember the exact figure from that letter. Jones -Jackson explained that the $58 million dollar sum she mentioned was based on letters from Flagstone's lawyers, Shutts and Bowen, that had been sent to both the City and the State. (There are two letters from accountants and financial advisors from Flagstone that have been sent over time to the City and State about the amounts that have been paid by Flagstone). A notarized letter dated May 2, 2014, days before the subject Commission meeting, from Flagstone's Chief Financial Consultant to the City, indicates that they believe they have spent in excess of $60.5 million, which Jackson said is more than the sum that she recalled at the time of the meeting. There was also an exchange between Commissioners Suarez and Sarnoff (refer to the Minutes of the July 26, 2012 Commission Meeting), where they discuss the same issue two years previous. Commissioner Sarnoff said at that time, "and we could be exposing the citizens of Miami to a breach of contract" and Suarez replies, "of course, damages" and Sarnoff says, "in the neighborhood of $40 to $50 million." Jones -Jackson said that the information stated by the Commissioners at that 2012 Meeting did not come from her, but rather, would have come from Flagstone's counsel and/or Flagstone's financial advisors. 4 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk The COE also interviewed foiiner City of Miami Commissioner Marc Sarnoff who was present at the May 8, 2014 Meeting. Sarnoff stated that prior to this meeting, he was fully briefed on the matter by City Attorney Victoria Mendez and that he would have told Jones -Jackson during the Commission Meeting if any of her statements were inconsistent with what was stated at the briefing. Sarnoff added that Jones -Jackson has a reputation of being pristine, factual, proper, and conservative. She has a stellar reputation and has never relayed incorrect information in the course of her employment. She comes with a reputation of being accurate on details. (See the full investigative report for Sarnoff's entire statement) The COE investigator also reviewed transcripts of the July 26, 2012 City Commission Meeting, the May 8, 2014 Meeting and numerous other documentary evidence. (See the full investigative report for further details) Review and Analysis: The Citizens' Bill of Rights Truth in Government provision provides that, "No County or municipal official or employee shall knowingly furnish false information on any public matter, or knowingly omit significant facts when giving requested information to members of the public." This case involves an Agreement that was ratified by the voters in 2001 and has been in existence since 2003 and gone through multiple revisions over -the years. Complainant has a history of litigation regarding this particular project from going forward. He has opinions about the legality and illegality of certain actions concerning this multi -faceted contract that differ with the City's opinions. After extensive review of the issues in this case, witness interviews and document review, we can find no evidence that Respondent Jones -Jackson "intentionally furnished false information or knowingly omitted significant facts" during the May 8, 2014 City Commission meeting. With an agreement such as this one, which spans- over ten (10) years, Complainant seems to "cherry -pick" certain issues which based on his interpretation, conflict with the position of the City. Jones- Jackson responded to questions asked of her at the May 8, 2014 meeting with apparent veracity and was not under any legal duty, nor was she asked by anyone to recount the entire history of the Agreement between Flagstone and the City. Accordingly, this complaint should be dismissed. 5 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Timeline of Cure Issue January 2012 — Flagstone Defaults under 2011 State Partial Deed Modification by failing to meet January 17, 2012 deadline to satisfy all recorded commercial judgments and State fees. Feb. 2012 — Flagstone asks forgiveness and tries to pay fees to the State despite the blown deadline, but make no effort to satisfy the commercial judgments. The State refuses to accept the late fees from Flagstone and insists the 2011 Agreement was terminated. June 2012 — Flagstone and City try to convince State DEP to administratively reinstate the 2011 Partial Deed Modification; State refuses. July 2012 — Because the 2011 Partial Deed Modification was terminated, City Commission votes to seek a new partial modification from the State, but Cabinet never takes up the issue. August -September 2012 — City Commissioners Sarnoff and Suarez and Mayor Regalado send letters to Governor asking his support to reinstate the 2011 Partial Deed Modification. October 2012 — State DEP rejects City officials' entreaties and declares the matter closed. May 2013 — When the Related Group proposed to enter the deal as a co -investor, the City and Related attempted, once again, to try to get State DEP to "administratively waive" Flagstone's January 2012 default. DEP refuses. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk September 2013 — City constructs an argument that a 1919 Legislative Act requires only a "municipal purpose" for lands conveyed by the State, and anything the Commission approves is a "municipal purpose," hence no deed modification is needed for private development like the Flagstone project. The significance of this new "revelation" would be that the Partial Deed Modification was never necessary and Flagstone's January 2012 default is irrelevant. Sept 2013- March 2014 — City tries to hire outside counsel to bolster the argument that under the 1919 Legislative Act that no partial deed modification is needed, but no firm is hired. Meanwhile, State officials repeatedly reject the argument. April 4, 2014 — State DEP reminds Flagstone that four commercial judgments totaling over $230,000 remain unsatisfied. DEP also informs the City again that it rejects the 1919 Legislative Act argument, and lacks the power to "administratively waive" the January 2012 default because there was never a right to cure under the applicable "cure" provisions of the 2011 Partial Deed Modification. April 25-May 13, 2014 -- After Flagstone hires Governor Scott's best friend, Tallahassee super -lobbyist Bill Rubin, DEP informs the City and Flagstone that the Cabinet would consider a new Partial Deed Modification at its May 13, 2014 meeting to enable Flagstone to meet the June 2 deadline, provided the City Commission gives its approval on May 8. The City (and Flagstone) had opposed the State's position, but it had no choice but to take a vote and approve a new partial modification of the deed. This was exactly what the City and Flagstone and had been trying to avoid for the previous 28 months. It was the antithesis of a culmination of a continuing effort to "cure" Flagstone's default. Ms. Jackson advised the Commission, in response to concerns raised that the Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk agreement violated section 29-B of the Charter, that a "no" vote would result in a breach of the City's agreement with Flagstone. She failed to inform the Commission about its obligations under Section 29-B of the Charter, and failed to apprise the Commission that Flagstone had breached the previous State agreement and remained in default, which would have excused the City's "duty of good faith." The City Commission passed the Modification resolution on May 8, and the Cabinet approved the measure on May 13. Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk VENSOSEEESSERN October 19, 2012 FLORIDA DEPARTMViENT OF ENV. OCTAL PROTECTION MARIORY SIONEMAN DOTJCrLAS BMJJLDJNO 3900 COMMONWEALTH BOULEVARD TALL AHASSEE, FLORIDA 32399 300 Mr. Francis Suarez Cliairman City of Miami commission 360E Pan .Anieucait Drive Miami, Florida 33133 Re: Flagstone Gardens Development Project Dear Chairman Suarez: RICO SCOTT GOVERNOR JENN)YER CARROLL LT. GOVEICNOR l3ERSCHEEL T. VJNYARD IR. SECRETARY Thank you for your letter dated Septber 17, 2012, seeking support from Governor Scott fax the Piagstone Gardens Development Project in the City of Nazi (Qty). Governor Scot has asked me to respond on his behalf. As you know, Governor Scott has worked tirelessly to create a business climate in Florida that will attract new- industry and compel current businesses to expand their operations. As a businessman, he knows the importance of getting people back to work and creating opportunities for Floridians. lit 1949 the Governor and Cabinet shill ag as the Board of Truster of the Internal Improvement Trust Fund (Board of Trustees) issued Deed No. 19447 to the City. The Deed contained a restriction that the land be only used for public purposes with an automatic reverter to the stage if the land use ever deviated from the public purpose requirement. On June 24, 2004, at the request of the City, the Department of I nvironmental Protection. (D1 presented to the Board of Trustees a recommendation to modify the Deed to allow Flagstone Island Gardens, LLC, (Flagstone) to construct a mixed -use development on. Watson Island (i.e. a private purpose). The Board of Trustees approved that request. On August 16, 2011, at the request of the City and due to changes n the array between the City and Flagstone, DEP once again brought this protect to the Board of Trustees with a recommendation for approval, as amended. To show their support for tows+? dep..sfare.fl us Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Mr. Francis Suarez October 19, 2J12 Page Two this project, the Board of Trustees again approved a parts modification. This modffication also required Flagstone to discharge ail of its undischarged judgments related to the projector deliver an amount not less than.175 per t of the total value of those judgments to be held in an escrow account on. or before January 17, 2012, or thf. agreement would be automatically taintin.atel Flagstone failed to meet that request and the agreement automatiCaliy terminated. As a result of these events and the lack of progress on this project over the past eight years, we have concerns about this project and its ability to move forward. We have met with Flagstone representatives and to date we remain Fara to our decision. While job creation is certainly an important priority for our state, it is foremost to respect the dfxection. of the Board of Trustees as a required and standard course of business and procedure, We respectfully thank you for your letter and the opport miry to articulate our position. Sincerely, Deputy Secretary Land and Recreation AD/es Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk From: Sawyer, Thomas Sent: Tuesday, April 01, 2014 9:35 PM To: Leopold, Matt; Fenton, Katy Cc: Heiser, Gary; Woolam, Scott; Campanile, Nick Subject: RE: Watson Island Matt/Katy: At Matt's request, to follow is what I took away from the March 26th meeting with the City of Miami (Alice Bravo and Henry Torre) and Nathalie Goulet (Flagstone), as well as Nick, Scott and Gary. First - a VERY brief intro.: Alice Bravo kicked off the meeting trying to once again make the case that the 1919 Special Legislative Act controls whether or not Deed 19447 properly (or improperly as Alice claims) imposed a "private use or purpose" restriction on the City's ability to sell, convey or lease Watson Island. We (BOT) feel the 1913 Tidelands Act controlled, and we point to the fact that litigation ensued over that very issue with a settlement agreement being reached such that Deed No. 19447 was subsequently executed by BOT and accepted by resolution of the City. We also discussed that, fairly recently, waivers of the private use and purpose restriction have been sought by the City and granted by BOT. After meeting enough resistance that it became apparent to the City and Flagstone that a speedy flip of our longstanding position was not forthcoming, Alice moved on to the "ask," to wit: the City wants the Flagstone project to happen and requests that certain Flagstone monetary defaults be "administratively" waived and that the Amended and Restated Partial Modification of Restrictions (attached) be reinstated with presumably extended time frames since satisfactions of the outstanding judgments have not occurred (which Flagstone readily acknowledges). There was a veiled attempt to say that staff previously told Alice that the settlement agreements Flagstone was in the process of entering into would serve as satisfactions of the judgments, yet that argument was dismissed out of hand given the presence of lawyers. Finally, time appears to be of the essence as it was told to us that Flagstone was to break ground in September 2013 and obtained from the City a 9 month extension; accordingly, the extended time period within which to break ground lapses in June of this year. Katy expressed that getting this item onto the May BOT agenda was unreasonable, so Alice was asked why the City can't simply seek another extension. She, in turn, blamed "local politics" which in my mind indicated that there might not be the wholehearted City endorsement of the project that was initially indicated. So ... the "go forward" I took from our meeting is as follows: 1. Katy was going to check the pulse of the cabinet aides to determine if there is an interest in trying to rush this onto the May agenda; and 2. The City and/or Flagstone (presumably Flagstone) was going to review the Amended and Restated Partial Modification of Restrictions to provide us with an argument for an "administrative" waiver or cure for the monetary default that's built into the document. As I write this, the only thing I have seen since our meeting on March 26th is Alice Bravo's e-mail below (sent the same afternoon), and she appears to be harping on what she believes was told to her and Veronica Diaz (Asst. City Attorney) on a telephone conference call on June 12, 2013, i.e., that we acknowledged the 1919 act was controlling on the issue of whether there's a valid private use or Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk purpose restriction. Obviously, I can't comment one way or the other as to what was said on that telephone call, yet I can say that she's not addressing the"go forward" question regarding an argument relative to the monetary default waiver. I will. Paragraph 2.(c) of the attached Amended and Restated Partial Modification of Restrictions states that Flagstone shall either discharge all undischarged judgments identified in the affidavit dated August 4, 2011 (also attached), required in Paragraph 2.(b)(iii) of the Amended and Restated Partial Modification of Restrictions or deliver to the Miami -Dade County Clerk of Courts' Registry on or before January 17, 2012, to be held in an escrow account, an amount not less than 125% of the total remaining outstanding principal balance of all undischarged judgments identified on Exhibit C of the Amended and Restated Partial Modification of Restrictions (a. nedt ^ } r erprovided tfaa tf a x3e f etelt t1of ?i f erx the Ajen Ti ter=re true ear• l' he r 4ta� it dtftt itzrt Re rtct in sitat i utt �t-i -tri�ta�... _._-_._ . e rr x t rin Paragrap1 s _t otapply �` It's also noteworthy that with regard to Flagstone's undischarged judgments, Flagstone acknowledged (again in Paragraph 2.(c)) that all,, the judgments identified in Exhibit C,, had not yet been discharged even though Flagstone was in the process of signing a settlement stipulations for two of the six judgments identified in Exhibit .,C,. I feel the automatic and immediate termination language, further beefed up by the paragraph 5 cure rights not being deemed to be applicable, is quite damning to any argument to be made for some form of "administrative" waiver of a default. While always open to a contrary argument, I'm not real keen on swaying from the clear language of the Amended and Restated Partial Modification of Restrictions, and neither the City nor Flagstone have sent us anything further as was requested of them as we concluded our meeting. As always, I'm available for further discussion as you see fit, and I ask that Nick, Scott and/or Gary provide any further clarifications or input that I may have misstated or missed. Have a good evening all. Thomas R. Sawyer Deputy General Counsel - Public Lands Section Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, FL 32399-3000 Phone: 850-245-2677 E-Mail: Thomas.Sawyer@dep.state.fl.us Frorn: Leopold, Matt Sent: Tuesday, April 01, 2014 4:14 PM To: Sawyer, Thomas Subject: Re: Watson Island Tom, I need an update on this. Thanks Sent from my iPhone Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk On Mar 26, 2014, at 5:36 PM, "Bravo, Alice" <abravo(a@miamigov.com> wrote:Good Afternoon, First and foremost, l would like to thank you and the others that attended the meeting this morning, for your time and consideration on this matter. Below I have included the first email I received last year regarding the 1919 Special Legislative Act (SLA). The conference call took place on June 12, 2013 (please see the attached email I received in advance of the phone conference with the 1919 SLA language itself). Veronica Diaz, Assistant City Attorney was the other City representative on the call with me. Most of the FDEP personnel cc'd on the email below participated on the call. During the call, I was informed that FDEP had acknowledged the validity of the 1919 SLA and therefore the next Deed Waiver for Flagstone to be requested from the TIITF would make reference to the 1919 SLA in Lieu of the 19447 Deed. I then questioned the need for a waiver since the only restriction referenced in the 1919 SLA referred to "Municipal Purpose" only. We were coordinating further discussions regarding the need for a waiver when Related Group dropped out of the project. As discussed this morning, the issue above can be discussed in the future as we hopefully develop a long-term global solution. In the short term, we look forward to working with you on bringing the Flagstone issue to resolution. Please feel free to call me on my cell 305-458-7541(cell) should you require any additional information. Thanks, Alice N. Bravo, P.E. Deputy City Manager - Chief of Infrastructure City of Miami Miami Riverside Center 444 S.W. 2nd Avenue - 10th Floor Miami, FL 33130 Office: 305-416-1091 Fax: 305-416-1019 Email: abravo@miamigov.com From: Leftheris, James[mailto:James.LeftherisOdep.state.fl.us] Sent: Friday, June 07, 2013 11:31 AM To: Bravo, Alice Cc: Campanile, Nick; Leeds, Stephanie; Heiser, Gary; Karter, Marjorie; Reardon, Sevin Subject: Conference Call Importance: High Alice, We would like to schedule a conference call next week with the City to discuss the 1919 Special Legislative Act (Chapter 8305, Laws of Florida). Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Below are some dates and times our staff are available. Please let us know if any of these dates and times will work for you and your staff. If not, please let us know and we can look at some alternative dates and times. June 12, 2013 - 10:00 a.m. to 11:00 a.m. June 13, 2013 - 2:00 p.m. to 3:00 p.m. Thanks and please call me if you should have any questions. Jim Leftheris Division of State Lands (850) 245-2555 Please take a few minutes to share your comments on the service you received from the department by clicking on this fink. DEP Customer Survey. <nmime-attachment> Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk T.� qbA 2L17AL IEPROVO2 T FUND STATE OF `'LORIDA ENDW ALL MEN BY THESE PRESENTS: That the undersigned, the Trustees of the Internal Improvement Fiend of the State of Florida, under and by virtue of the authority of Section 253.12, Florida Statutes, 1941, and according to the provisions provided for in Section 253.13, Florida Statutes, 1941, and for and in considera- tion of the sum of Ten and 00/100 Dollars and other Good and valuable considerations, to the in hand paid by CITY OF MIAgl, Dade County, Florida, receipt of which is hereby ocnowledged, have granted, bargained, sold and conveyed to the said CITY OF MI iI and its suceeseors and assigns forever, the following de- scribed lands, to -wit: Beginning at the point of intersection of the • Easterly production of the Center.Line of Ricbmers Street (now known as N. E. 13th Street) as shown on the Amended Plat of "RIMERS ADDITION" as recorded in Plat Hook 3, page 2, with their. S. harbor Line on the West side of Biscayne Bay; thence run ;North- erly along said . S. harbor Line to a point on a line four hundred and fifty feet North of And parallel to the Easterly -production of the said Center Line of Riokmers Street (nogg known as N. E. 13th Street); thence• run Easterly along said line l 5Q_ feet north. of and parallel to the Easterly production of the. Center Line of said Ricers Street (nosy Innown ae N. O. 13th Street) to the point of intersection with. that course described in Deed Hook 361, Pave 353, as ." followws: "Thence in a,Southeaster]:y direction to, the Southeast corner of the Southwest Quarter of the Southwest quarter (SWof SW') o.f Section 324 Township 53 South, Range 42 East"; Theme South- easterly along the said last described course tq. the said Southeast corner.Of the SW of S11.2 of Section 32, Township 53 South, Range 42 East;_Thence run South along the east line of the}.Nof Nwlii of 'Section 5, Township 5E;. South, Range 14.2 .past toga point eiGhty feet Northerly from and measured at right angles to the Center Line of the .isia:zi Muni- cipal Channel; Thehce run Southeasterly following, that coarse described in Doed 3ook 14.72, Page Wee. as .follows; "Commencing at the intersection of the. West Line of the Ni-..of Section 5 aof Pael-. , Township54. , t South, Range 42 ast, and a lino parallel to and eighty feet Northerly fro,., and measured at right angles tothe Center Lind of tho Miami leuni- ciaal Channe1J1;. to the Zest boundary of the, :lest 3/4 of said Section 5;_ Thence run South along the 2ast boundary of the West 3/4eof said Section 5. and Section 8, Township 514. South; Range 42 Last to the Northerly Line _of the Fr^C Railway Cox any•. Channel as described in aforesaid Deed Book 1472, Page 474; , Thence run Westerly along the said Northerly Line of the FRO Railway Company Channa to the Eaat line of the NW of Section 8, Town- ship 51. South, Range 42 East Thence run westerly .► 1 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk along that line described in Chapter 13635 (No. 102) Laws of Florida. - 1929 as follows: "Theme westerly to the Intersection of the P. & 0. S.S. Channel and the Channel extending from the Mouth of the I;iarsi River in a Southeasterly direction", to the East line of Section 7, Township 54 South, Range /42 East; Thence run South along the said ast line of Section 7, Tawnahip 54 South, Range 42 ;vast to a point 2000 feet North of the South line of Section 7, Township 54 South, Range 42 mast, being that point at the termination of the line described in Deed Book 1900, Page 355 Parcel "3" as follows: "Thence worth along; the East Line of said Section 7 for a distance of. 2000 feet to a point"; Thence along the course de- scribed in Deed book 1900, Page 355, as follows: "Thence Southwest 2823 'feet to a point on the South boundary of said Section 7", to a point 2000 feet West of the Southeast corner of said Section 7; Thence run West along the South line of said Section 7 and the South line of said Section 7 produced West, to the point of intersection with the i1. S. Harbor Line on the West side of Biscayne Bay; • thence run Northerly along the said U. S. Harbor Line to the point of beginning. Except therefrom the following described BAY B0TT0 LAND AREA FOR DREDGING IN CONNECTION WITH PROPOSED 85 ACRE BURLINGAME TSLA:b'D. Beginning at the point of intersection of the South easterly production of the Northerly side of S. R. 14.th Street, the same being; the Southerly line of Lighle. artIs Subdivision as recorded in Plat Book 1, Page 18i;. of the Public Records of Dade County, Florida, With the U. S. Harbor Line on the Westerly side of Biscayne Bay; thence Northerly alon.-the said U. S. IIarbor Lino and the Northerly extension thereof 3800 feet, more or leas, to the point of intersection with the Southerly line of id.ami River Channel, as ahown and established on Sheet No. 2 of plan_ pre- pared by U. 3. Engineer Office, Jacksonville, Florida, November 1934, showing Miami River, Florida, condi- t_one on completion of Dredging of Channel Project; thence Northeasterly along the said Southerly line of i tari River Channel and the Northeasterly pro- duction thereof 2500 feet to a point; thence Southerly 5300 feet, more or less, along a line parallel to the Southerly production of the dividing line between Township 53 South, Range 41 last and To;mship 53 South, Range 42 East to the point of intersection with the aforesaid Southeasterly production of the Northerly side of S. E. 14th Street; thence Northwesterly 22900 00ueeof et, re or leas, along the said Southeasterly to the U. 5. Harbor Line, the point of be!.;iny side of S, 43„ 14th Street ning.And further excepting therefrom all land title to which is in private parties, TO HAVB AND TO HOLD the said above Mentioned and described land and premises, and all the title and interest of the Trustees therein as granted to them by Section 253.12, Florida Statutes, forever. 19)4, unto the said CITY OF F.IAMI and its successors and assigns Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk SASSING A'.D R ERVIN. unto the Trustees of the Internal Irsprove- nent FUnd of Florida, and their successors, an undivided throe - fourths interest In and title in and to'an undivided three -fourths interest in all the phosphate, minerals and metals that are or may be in, on or under the said above described lands, and an undivided ono -half interest in and title in and to an undivided one-half in- terest in all the petroleum that is or may be in or under the said above described land, with the privilege to mine and develop the same. P.VTOY"D, 'r WM977R. anything herein to the contrary notsr!th standing,kthia deed is given and granted upon the expr ss cohdi'tion a.a13se er4. i:a tT 4.ii= ii a Y.ei,4iii O T r,1,ts �ascess�z:ns n ,. ussigna 5 sa 2+ S� ar Dr e . „-6 taiF'a d_so ...rnd or a s gip° ri at0'S `zt o� r r ora is ; r0 4,_aa ur* PROVIDED, PURI:n:1 t, anything herein to the contrary notwith- standinq, this deed is given and granted upon the further express condition subsequent that the Grantee herein or its successors or assigns siWWW4WeitWOr rant a:vr 1..cense or erzi. ; ° to- a, }f; pri v i Go= pii2sse firm or corporation to construct or . matte by any means, any islands, fills, embankments, structures, buildings or other similar things within or upon the above described. lands or any part thereof for any private use or purpose, as distinguished from any public or municipal use or purpose. v,. ax t d aT E. ry r twn f #_ s auo �d oil' Ak4;41ignmollm ..4v' ' ?iG <t Via' :40- atitt +.s o4G 1 � IN WITNESS WHEREOF, the Trustees of the Internal Improvement Fund of the State of Florida havo hereunto subscribed their names and affixed their seals, and have caused the seal of the "DEPART- MENT Jr AGRICULTURE OF TES STATE OF FLORIDA", to be hereunto affixed, at the Capitol, in the City of Tallahassee, on this the 24th, day of February , A. D. Nineteen Hundred and Forty-nine. Sent to ir. George Salley Hunt and Salley - Miami, Florida Feb. 26th, 1949 or xta.l,lor ssarron Governor C. H. Gay t o.eptrollar J. Edwin Larson Treasurer Richard W. Evin Attorney General Nathan gayo (SEAL) commissioner of -Agriculture (SEAL) (SEAL) (SEAL) (SEAL) Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Florida Department of Memorandum Environmental Protection TO: NOTICE OF BOARD ACTION Office of the Secretary Office of Coastal and Aquatic Managed Areas Office of General Counsel Office of Greenways and Trails District Office Division of Recreation and Parks Division of Water Resource Management Division of State Lands FROM: Karl Rasmussen, Director Office of Cabinet Affairs ITEM # Substitute Item 2 1lILE: BOT/Watson Island Amended and Restated Partial Modification of Deed Restrictions/ City ofM ami/Flagstone Island Gardens, LLC CABINET MEETING DATE: August:16; 2011 .: ACTION: Approved without objection. !I Future Board of Trustees' Action Required If required, date to be taken to Board of Trustees: X Action/Follow-Up Needed Comments: (1) City has to approve the Amended and Restated Partial Modification of Restrictions in same form approved by the Board of Trustees; and (2) Flagstone has to discharge all undischarged judg_rnents or deliver to Miami -Dade County Clerk of Courts' Registry on or before January 17, 2012. MEMBERS: GOVERNOR ATTORNEY GENERAL CRiEF FINANCIAL OFFICER COMMISSIONER OF AGRICULTURE Present Absent X X X X The above action was taken on the subject division agenda item at today's meeting. Will you please see that the information is provided to appropriate staff for further processing/handling of the matter and that the formal action as noted is made a part of the division's master file. Please contact me immediately if you have any questions relating to the item's action as noted (245-2024). Thank you for your cooperation. KR/cb STATE OF FLORIDA COUNTY OF LEON Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Florida Department of Environmental Protection Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 CERi.[F ICATE Rick Scott Governor lennifer Carroll Lt. Governor Herschel T. Vinyard Jr. Secretary I, Karl Rasmussen, do hereby certify that the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, met on August 16, 2011 and approved the following Substitute Item 2 on the agenda for that date. Substitute Item 2 BOT/Watson Island Amended and Restated Partial Modification of Deed Restrictions/City of Miami/Flagstone Island Gardens, LLC WITHDRAWN FROM THE APRIL 5, 2011 AGENDA REQUEST: Consideration of a request from the City of Miami for an Amended and Restated Partial Modification of Restrictions Deed No. 19447-F to revise the schedule and stricture for payments due to the Board of Trustees and to include Flagstone Island Gardens, LLC, as a party to the amended document. VOTING REQUIREMENT FOR APPROVAL: Two members, one of whom is the Governor, when four members are voting, or any two members, when three members are voting COUNTY: Miami -Dade APPLICANT: City of Miami (City) LOCATION: Section 31, Township 53 South, Range 42 East, Biscayne Bay Aquatic Preserve, Class in waters, within the local jurisdiction of the City of Miami CONSIDERATION: Semi-annual payments of 15 percent of the total preconstniction rents and construction rents from 2010, to be paid by Flagstone Island Gardens, LLC (Flagstone), and semi-annual payments of 15 percent of total base rent beginning on October 1, 2021, or upon the completion of the development, whichever occurs first, with a guaranteed minimum annual payment of S300,000, to be paid by the City. }ntw.depslare l.us Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Certificate for Substitute Item 2 August 16, 2011 Trustees' Agenda Page Two MINIMUM ANNUAL PAYMENTS TO BOARD OF TRUSTEES .FROM FLAGSTONE AND CITY Flagstone Payments to Board of Trustees 2010 $45,000 (to be paid in 2011) 2011 575,000 2012 5112,500 2013 2014 2015 2016 2017 2018 2019 2020 $150,000 5150,000 $150,000 $171,000 5197,250 $246,000 $246,000 5283,500 *$283,500 *$283,500 *5321,000 City Payments to Board of Trustees 2021 5300,000 *S321,000 2022 5300,000 *$337,500 2023 5300,800 *5347,250 2024 $300,000 *5347, 250 2025 5300,000 *5347, 250 2026 5300,000 *5347, 250 2027 $300,000 *5347, 250 2028 $300,000 *$347, 250 2029 5300,000 *5347, 250 2030 $300,000 *5347, 250 * This amount includes additional payment for extensions if applicable Note: These amounts will be divided into semi-annual payments. Board of Trustees would also receive 15% of percentage rents or other rents received by Flagstone and paid to the City in addition to these amounts. CPI increases will be applicable on the first anniversary of the commencement of the Base Rent for each major project component as set forth in the Ground Lease(s). STAFF REMARKS: Background On June 24, 2004, the Board of Trustees approved a Partial Modification of Restrictions Deed No. 19447-F ("Partial Modification") for a 24.14-acre parcel of non -conservation lands located on and adjacent to Watson Island. This parcel consists of 10.79 acres of uplands and 13.35 acres of submerged lands. This Partial Modification allows the City to lease this parcel to Flagstone for a state-of-the-art mega yacht marina and mixed -use project on Watson Island. In consideration of the Board of Trustees modifying the public purpose restrictions to allow the City to enter into a public -private, profit making partnership with Flagstone, the City agreed to make semi-annual payments to the Board of Trustees based upon 15 percent of the total gross base rental payments received under the Ground Lease but no less than $300,000 during each 12- month period after the full base rent is due. The City also agreed to guarantee that Flagstone will spend no less than $1,000,000 to improve an undeveloped, open space area on the southeast side of Watson Island and the Japanese Garden on Watson island. These improvements will include: a playground, parking area, security cameras, restroom facilities, observation area or platform, underground utilities, fencing, and open air pavilion which was part of the original approval of the partial modification of restrictions. The original Agreement to Enter into Ground Lease executed January 31, 2003, gave Flagstone 48 months to enter into the Ground Lease with the City. The City has provided Flagstone extensions to enter into a ground lease. The City is requesting an Amended and Restated Partial Modification of Restrictions, which supersedes the Partial Modification, to revise the payment schedule to change when these funds will be paid to the Board of Trustees and to add Flagstone as a party to the Amended and Restated Partial Modification of Restrictions because Flagstone is required to make semi-annual payments to the Board of Trustees until the development is completed or October 1, 2021, whichever occurs first. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Certificate for Substitute Item 2 August 16, 2011 Trustees' Agenda Page Three Current Request The City is requesting the Partial Modification be amended to include the revised payment schedule and structure as indicated in Exhibit A to the City's Resolution R-10-0402 dated September 23, 2010. In addition, Flagstone will become a party to the Amended and Restated Partial Modification of Restrictions because it has agreed to pay the Board of Trustees semi-annual payments of 15 percent of the total preconsiruction and construction rents paid to the City on January 1 and July 1 of each calendar year until the development is completed or October 1, 2021, whichever occurs first. After this date, the City will begin making payments to the Board of Trustees. The Amended and Restated Partial Modification of Restrictions will provide that if either Flagstone or the City, fails to make payments as required, the Board of Trustees may terminate the Amended and Restated Partial Modification of Restrictions after the cure period specified in the Amended and Restated Partial Modification of Restrictions expires. Flagstone will also certify in the Amended and Restated Partial Modification of Restrictions that Flagstone has no undischarged judgments entered against it, except for the following: Beach Tower LLC in the principal amount of $236,20395; Miller Legg in the principal amount of $3,989.19; Lillian Ser in the principal amount of $674,000.00; Stephen James Associates in the principal amount of $33,155.82; Americas Media Group Worldwide in the principal amount of $336,924.91; and Pandisco (New York judgment) in the principal amount of $131,471.18. These judgments will either be discharged or funds delivered to the Miami -Dade County Clerk of the Courts' Registry on or before January 17, 2012, to be held in an escrow account in an amount not less than 125 percent of the total remaining outstanding principal balance of all undischarged judgments. If approved, these revisions will provide additional revenue to the state of approximately $1,050,750, to be paid directly by Flagstone, which was not part of the original 2004 Board of Trustees' approval. In addition, this project will create new jobs. The Department of Environmental Protection recommends that the Board of Trustees approve the Amended and Restated Partial Modification of Restrictions to revise the payment schedule to the Board of Trustees and to include Flagstone as a party to the Amended and Restated Partial Modification of Restrictions. The Amended and Restated Partial Modification of Restrictions also requires that any material amendments to the Ground Lease and/or the Agreement to Enter must first receive prior Board of Trustees' approval Comprehensive Plan A local government comprehensive plan has been adopted for this area pursuant to section 163.3167, F.S. The Department of Community Affairs has determined that the plan is in compliance. The proposed action is consistent with the adopted plan according to a letter received by the City. (See Attachment 2, Pages 1-65) Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Certificate for Substitute Item 2 August 16, 2011 Trustees' Agenda Page Four RECOMMEND APPROVAL SUBJECT TO (I) THE CITY'S APPROVAL OF THE AMENDED AND RESTATED PARTIAL MODIFICATION OF RESTRICTIONS IN IRE SAME FORM APPROVED BY THE BOARD OF TRUSTEES; AND (it) FLAGSTONE'S DISCHARGE OF ALL UNDISCHARGED JUDGMENTS OR DELIVERY TO THE MIAMI- DADE COUNTY CLERK OF THE COURTS' REGISTRY ON OR BEFORE JANUARY 17, 2012, TO BE HELD IN AN ESCROW ACCOUNT, OF AN AMOUNT NOT LESS THAN 125% OF 1'IU TOTAL REMAINING OIITSTANDING BALANCE OF ALL UNDISCHARGED JUDGMENTS. IN WITNESS WHEREOF, I have hereunto set my hand, and affixed the Seal of the Board of Trustees of the Internal Improvement Trust Fund on this 16t day of August A.D., 2011. SEAL sen, Director Office of abinet Affairs Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk 111111111111111111111111111111111111111111111 FN 2011R0624291 OR BK 27828 Ps 3675 - 8698F (2490 RECORDED 09/16/2011 18=46:1? HARVEY ROVINt. CLERK OF COURT!. MIAMI-DADE ChUNTYp FLORMA BOARD OF TRUSTEES OF ME INTERNAL IMPROVEMENT TRUST FUND OF TRE STATE OF FLORIDA AMENDED AND RESTATED PARTIAL MODIFICATION OF RESTRICTIONS DEED NO. 19447-F KNOW ALL MEN BY TECESE PRESENTS: That WHEREAS, the BOARD OF TRUSTEES OF INTERNAL IMPROVEMENT TRUST FUND OF ItzC STATE OF FLORIDA ("BOARD OF TRUSTEES"), is by Section 253.03, Florida Statutes, authorized and eanpowered to modify restricted uses for certain lands under the terms and conditions set forth herein; and WHEREAS, the BOARD OF TRUSTEES conveyed to the City of Miami ("CITY") certain lands more particularly described in p:0-0404:-::044,7,*- recorded in Deed Book 3130, Page 257, Public Records ofMiami-Dade County, Florida (the "Deed"); and WBEREAS, the Deed contains the following restrictions (the "Original Restrictions"): PROVIDED, HOWEVER, anything herein to the contrary notwithstanding, this -deed is given and granted upon the express condition subsequent that the Grantee herein or its successors and assigns shalionmer:selliar conveyor lease the above described land or any part thereof taitYptrateIleradff; rum -or corporation for any -private we or:purpose, itibeingthei_illtentioniottlft restriction that the •said lands shall be used solely for Iniblicpurposes,-,:incruding_ municipal purposes -and not otherwise. PROVIDED, FURTHER, anything herein to the contrary notwithstanding, this deed is given and granted upon the further express condition subsequent that the Grantee herein or its successors or assigns shaanotgiveorgrantanyFlicense_ Tera_300,44Y- Pril*P,Porsoni'fArna4g-00V-0P941.909,RLPs_41414r-P4kebYtanY 14,41M,z-gct3r-idands, B114--embaPlimflA„grKt4ms,.:•lbuildingsf-ntAteMsitnfiar thingsvithimorupentheabovedescribedlands ortuaygarttereof foranypririge useorpurpose, as distinguished froreanypublic or municipauseenpurpose. It is covenanted and agreed that the above conditions subsequent Axil run with the land and any violalion tbereofb11 above-deteribOd:'landt any *mit, melt - auecesscra. WHEREAS, the BOARD OF TRUSTEES approved a modification of the Original Restrictions on .Tune 24, 2004, and executed and delivered an instrument entitled "Paztial Modification of Restrictions" on March 2, 2005, and same was recorded on March 18, 2005, in Official Records Book 23181, Page 775, Public Records of Miami -Dade County, Flori MIADOCS 5570952 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk WHEREAS, the QTY is still desirous of leasing that portion of the Tandy conveyed to the CITY by the Deed which is described in Exhibit "A", attached hereto and made apart hereof (the `ProPe')> to Flagstone Island Gardens, LLC, a Delaware limited liability company (`FLAGSTONE"), to allow for the construction and operation of a public and private commercial, marina, and mixed use, waterfront development, including any and all uses permitted under the Ground Lease, as defined below (as a whole or in phases, the "Development"), and in. order to accomplish the same, it is necessary that the'Original i .esirictionshe .odified by the BOARD OF TRUSTEES; and WHEREAS, the Development is still in the public interest because it will convert the Property from a sparse, unimproved field to a location that will contain cultural, scenic, and recreational values that. will benefit the public while at the sauce tune retaining 60% of the Development as open space in the form of gardens, walkways, and a waterfront p.onrenade available to residents and visitors for cultural and recreational activities; and WHEREAS, in furtherance of the public interest; the Development will still also aid tourism, provide training and employment opportunities to residents, and generate significant tax revenue for the CITY; Miiami Dade County and the State of Florida; and WHEREAS, the BOARD OF TRUSTEES, the CITY and FLAGSTONE desire to amend and restate the Partial Modification of Restrictions on the terms set forth in this Amended and Restated Partial Modification of Restrictions; and WHEREAS, the BEARD OR Tltl±TS approved this Amended and Restated Partial d.an o€Restciataotts oa.August 16, 2(111; and WHEREAS, the _ proved this Amended and Restated Partial Modification of Restrictions effective as of September 15, 2011. NOW THEREFORE, for and in consideration of the foregoing recitals and of the mutual covenants, terms, and conditions herein contained, and other good and valuable consideration, the BOARD OF TRUSTEES, the CITY and FLAGSTONE hereby completely amend and restate the Partial Modification of Restrictions as follows: 1. Consent to Develo meat and Ground Lease. Provided that the CITY and FLAGSTONE satisfy their respective obligations set forth in Para and subject to termination in accordance with the provisions of ass 2 and 3 belowa Restated Partial Modification of Restrictions, the OriginalAmended and Modification of Restrictions are hereby modified to ermi Restrictions and.Partial TRUSTEES hereby consents to, the following:P and the BOARD OF thereof b the CITY to �} the leasing of the Property or parts y FLAGSTONE pursuant to the ground lease or leases between the CITY and FLAGSTONE (the "Ground Lease," which teem shall include E bit "A,° to the Ground Lease and any amendments made in accordance with the Ground Lease); (ii) FLAGSTQNE's use of the Property forexhews terms of the construction and operation of the Development; the eelapmer�� licenseonstr (iii) the grant of any easements and/or agreements which are necessary or appropriate for pre -development work related to the Development, such as utility relocation and access related to the Development and 2 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MW>OCS 5510952 3 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk which are necessary or appropriate for such construction or operation of the Development, and continued access related to the Development, all upon the Property or within the areas described in Exhibit `B", attached hereto and made a part hereof (the "Easement Areas'), and (iv) that certain Amended and Restated Agreement to Enter into Ground Lease between the CITY and FLAGSTONE effective as of September 15, 2011 (the "Agreement to Enter"), a copy of which had been provided to the Division (defined . below). In the event that (i) FLAGSTONE and the CITY are contemplating any material modifications to the Groimcl Lease and/or the Agreement to Enter, FLAGSTONE and the GUY agree to discuss such proposed modifications with the Division (defined below) contemporaneously with any discussions on the proposed modifications between FLAGSTONE and the CITY, and (ii) any material amendments to the Ground Lease and/or the Agreement to Enter must �t receive prior approval by the BOARD OF IAA. TRUSTEES at a regularly scheduled meeting. 2. FLAGSTONE'S Oblipatlons. (a) Payments. Until the Development is completed or October 1, 2021, whichever occurs first ("Takeover Date")) FLAGSTONE shall make payments to the BOARD OF TRUSTEES, on a send -annual basis, in an amount equal to *15% of the amount it pays to the CITY under the Agreement to Enter and the Ground Lease(s) pursuant to the rent schedule set forth on Exhibit "A" to City of Miami Resolution R 10- 0402, adopted September 23, 2010 (the "Resolution''., FLAGSTONE shall make these semi-annual payments to the BOARD OF TRUSTEES on January 1 and July 1 of each calendar year. Each payment shall be in an amount equal to 15% of the sums paid. by FLAGSTONE to the CITY during the prior six (6) months, except for the first semi- annual payment which. may be based on less than six (6) months of payments if less fhim six (6) months have elapsed since commencement of payments to the CITY. Notwithstanding the foregoing, the first payment by FLAGSTONE to the BOARD OF TRUSTEES under this Amended and Restated Partial Modification of Restrictions shall be in the amount of 15% of the amount of the fast payment (the "First Payment') to be made by FLAGSTONE to the CITY on or before September 29, 2011, and shall be made on the same date as the First Payment, (b) Certification. FLAGSTONE certifies to the BOARD OF TRUSTEES as follows: (i) FLAGSTONE is not the subject of a pending bankruptcy proceeding; (ii) FLAGSTONE is current with regard to all state and local tax payments for which it is responsible; and (iu) FL;AGSTO1ilB $as exeonted: an ,affidavit dated, August 4, 2011, receding undischarged ier4 Any breach of a statement in that affidavit or of the certifications in this paragraph shall constitute a default by FLAGSTONE under this Amended and Restated Partial Modification of Restrictions. (c) Discharge of Judgments. FLAGSTONE, shall either discharge all undischarged Mg:scats aenttfied n the affidavit required in Paragraph fare above or ,yliv€e tt the ;; anu-Tide County Clerk of the Conrts' R egtstry on. or before January 17, 201 , to be held m an escrow account, an amount not Iess than 125% of the total remainarig outstanding principal balance off it " attached ereto and ,� a —---�----� •l newts identified on 3 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 3 If FLAGSTONE fails to do the Att Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk foregoing, ilbiis. Amended and Restated Partial Modification of Restrictions shall automata a]I 'atel terminate and the cure ruffs providedfo3jt.Paractaph 5 ow s not Ail: Additionally, FLAGSTONE agrees to comply with the CITY's requirements in Section IX, Indemnification/Hold Harmless for City; Discharge of Existing Liens, Judgments, and Garnishments in Exhibit "A" to the Resolution. 3. CITY's and FL.&..GSTONB's Obligations. (a) Payments. From and after the Takeover Date, the CITY shall make payments to the BOARD OF TRUSTEES, on a semi-annual basis, in the amount of 15% of the total gross rental payments received by the CITY under the Ground Lease (including, but not necessarily limited to, Base Rent and Percentage Rent, as defined in the Ground Lease), - with tine first semi-annual rental payment being made on the 30s' day of the month in which the CITY receives its sixth month Base Rental payment pursuant to the Ground Lease, and each subsequent semi-annual payment being made on the 30$' day of each and every sixth month thereafter for as Iong as the Development remainson the Property. In no event shall the BOARD OF TRUSTEES receive less than $300,000 during each 12-month period from and after the Takeover Date, regardless of whether the CITY actually collects Base Rent or Percentage Rent under the Ground Lease. (b) Permits. The CITY chap insure and guarantee the BOARD OF TRUSTEES that the CITY align require FLAGSTONE to apply far and obtain all permits required by law for the Development. (c) Financial Audit Reports. Beginning on the date of the CI'TY's first semi- annual rental payment to the BOARD OF TRUSTEES as required by Paragraph 3(a) above, the CITY shall. require FLAGSTONE to submit for each calendar year, annual financial audit reports to the BOARD OF TRUSTEES which have been completed by an independent certified public accounting fima in accordance with generally accepted accounting principles and which certify the accuracy of the semi-annual payments described in?aragraph 3(a) above. (d) Status Reports Regarding Development. Beginning one year after the Ground Lease Effective Date (defined below) of this Amended and Restated Partial modification of Restrictions, the CITY shall require FLAGSTONE to submit annual status reports to the Division (defined below) that verify the progress of the proposed Development. The CITY shall be required to submit such: information that the CITY receives from FLAGSTONE for these annual status reports to the Division until each phase of the Development has received a certifoate of completion. Each such report from FLAGSTONE shalt include a list of all then -existing Curing Parties (defined below). (e) Completion of Development. The CITY shall require FLAGSTONE to insure and guarantee that the Development is completed in the manner contemplated and required by the Ground Lease (including obtaining applicable permits) within the time periods set forth in the Ground Lease. 4 An:untied and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5570952 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk (f) Improvements to Additional Lands. The CITY shall require FLAGSTONE to insure and guarantee that any staging area located within the Basement Areas used by FLAGSTONE pursuant to any easement or license agreement shall, after its usage by FLAGSTONE, be left in a condition better than its condition when it was delivered to FLAGSTONE. In addition to the foregoing, the CITY shall require FLAGSTONE to insure and guarantee that FLAGSTONE will Spend no Iess than $1,000,000.00 on improvements to (1) an open spaceof land on the southeast side of Watson Island known as Southside Park and (2) the Japanese Gardens. Some of these improvements shall include, but not be limited to, the following. master planning of Southside Park, open air pavilion or covered support facility, fencing, removal of invasive trees and plants, underground utilities, park pathways, bicycle and jogging trails,. public restroom facilities, security cameras and/or devices, and parking area. (g) Executed Copy of Ground Lease. The CITY shall insure that the BOARD OF TRUSTEES receives a fully executed copy of the Ground Lease within 30 days of the execution and delivery of the Ground Lease by the parties thereto and all subsequent amendments thereto. (h) Gambling. During the term of the Ground Lease and any icnewels, extensions, modifications or assignments thereof, without the express consent of the BOARD OF TRUSTEES and notwithstanding any contrary provisions that now exist in the Ground Lease, the CITY and FLAGSTONE shall not permit: (1) casino gambling and all other forms of gambling on the Property and the Basement Areas and (2) the operation of or entry onto the Property and the Easement Areas of gambling cruise ships, or vessels that are used principally for the purpose of gambling, when these vessels are engaged in "cruises to nowhere," where the slips leave and return to the state of Florida without an intervening stop within another state or foreign country or waters within the jurisdiction of another state or foreign country, and any wate etaft used to carry passengers to and from such gambling cruise ships. 4. Temaination of BOARD OF TRUSTEES' ApprovaL (a) Defsnit in the Crrrs Obligations. Subject to the notice and cure provisions set forth in Paragraph 5 below and the unavoidable delays provision set forth in Paragraph 6(a) below, the BOARD OF TRUSTEES may terminate the approval set forth in Paragraph 1 above if any of the CITY's obligations as set forth above in Paragraph 3 are not performed in a timely manner or FLAGSTONE% obligations set forth above in Paragraphs 2 and 3 are not performed in a timely manner. (b) Termination of Ground Lease. Subject to the notice and cure provisions set forth in Paragraph 5 below, the BOARD OF TRUSTEES may terminate the approval set forth in Paragraph 1 above if he Ground Lease is terminated in acpordance with its terms and it is not replaced with any new replacement lease(s) expressly provided for by the Ground Lease or by any Subordination, Non -Disturbance and Attomment Agreement entered into by any of the Curing Parties; provided, however, this termination right shall not apply if there are separate ground leases for components of the Development and at least one such Ground Lease has not been terminated. 5 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447F MIADOCS 5570952 3 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk (c) Reimposition of Original Restrictions. If the BOARD OP TRUSTEES terminates this kneadedand Restated Partial Modification of Restrictions, the Original Restrictions shall automatically and immediately be reimposed on the Property and Easement Areas. 5. Cure Rights. The BOARD OF TRUSTEES agrees that in the event that the BOARD OF TRUSTEES or the Division of State T Ands, State of Florida Department of Environmental Protection (the 'Division"), determines that a default (a `Default") described in Paragraph 2(a), 2(b)(ii) or 3(a) above (a •lMone a ry Default') or Paragraph 2(b)(i), 3(b), 3(c), 3(d), 3(e), 3(t), 3(g) or 3(h) above. (a "Non -Monetary Default") hag occuered, the following procedures shall apply: (a) Notice. The BOARD OF TRUSTEES or the Division shall provide notice to the CITY or FLAGSTONE (whichever is believed to have defaulted) of any Default, which notice shall identify the alleged Default. The BOARD OF TRUSTEES or the Division shall send a copy of such notice to each Approved Mortgagee and Major Subtenant and any associationformed to administer the applicable regime(s) ("Associafion(s)") with respect to Apppioved Mine Share Licenses, as such terms are defined in the Ground Lease, and to the CITY or FLAGSTONE (whichever is not believed to be the defy;dling party) (the Major Subtenants, the Approved Mortgagees, such Association(s) and the CITY or FLAGSTONE (whichever is not the defaulting party), each a "Curing Party"). Notwithstanding the foregoing, the BOARD OF TRUSTEES or the Division shall be required to send a copy of any such notice only to each party as to which the BOARD OF TRUSTEES or the Division has been notified in writing of such party's status as a Curing Party. In the event the BOARD OF TRUSTEES or the Division fails to send a copy of such notice to any such Curing Party, such failure shall not affect the validity of the Default notice given to any other Curing Party, or the eure period set forth in Paragraph 5(b) below which is afforded to such other Curing Party. (h) Cure Periods. The BOARD OF TRUSTEES agrees that if the BOARD OF TRUSTEES determines that the CITY or FLAGSTONE (as applicable) has failed to cure the Default after being given the opportunity to do so (which determination of the CITY's or FLAGSTONE% failure to cure the Default may be made in the sole arid absolute discretion of the BOARD OF TRUSTEES), any Curing Party shall have the opportunity. (i) to cure any Monetary Default within 60 days from the rlett the BOARD OF TRUSTEES sends its notice of Default (the `Default Date"); and (ii) to cure any Non - Monetary Default within 120 days from the Default Date; provided, however, that if any Non -Monetary Defa»It cannot, in the exercise of due diligence and good faith, be cured within such 120-day period, any Curing Party shall fiave such additional reasonable period as will enable such Curing Party, with the exercise of due diligence and in good faith, to cure the Non -Monetary Default; provided farther that the cure period for such Non -Monetary Defaults shall not exceed.24_naonths from the Default Date (except that if possession of the Property by such Curing Party is reasonably necessary for such Curing Party to cure such Non -Monetary Default, the cure period for such Non -Monetary Default shall not exceed 24 months from the date such possession is obtained, so long as such Curing Party is diligently pursuing proceedings to obtain such possession). 6 Amended and Restated Partial Modification of Restrictions Dead Restriction No. 19447-F MIADOCS 5370952 3 6. Miscellaneous. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk (a) Unavoidable Delays. The BOARD OF TRUSTEES recognizes that there may be instances when unavoidable delays may be encountered which are caused by circumstances beyond the reasonable control of the CITY or any Curing Party and could not have been overcome by the CITY'S or such Curing Party's due diligence. A filing of a voluntary petition in bankruptcy or for reorganization or an arrangement pursuant to the Federal Bankruptcy Code or any similar law, federal or state, now or hereinafter in effect, or an assigmnent for the benefit of creditors shall not be considered an unavoidable delay for purposes of this Paragraph 6(a). In the unlikely event of such an unavoidable delay, the BOARD OF TRUSTEES agrees to the following procedure: (i) upon occurrence of any unavoidable delay, the CITY or any Curing Party shall notify the Director of the Division in writing within 30 days thereafter of the anticipated length and cause of the delay, the measures taken or to be taken to minimize the delay and the timetable by which the CTI'Y and/or such Curing Party intends to implement these measures; (ii) the parties will then enter into discussions to determine the appropriate extension, to allow the CITY or such Curing Party adequate time to meet the delay or anticipated delay. The Division, acting on behalf of the BOARD OF TRUSTEES, shall agree to extend the time for performance hereunder for a period equal to the agreed delay from such circumstances. Such agreement shall adopt all reasonable measures necessary to avoid or minirni7e the delay; and (ill) if the parties cannot agree, the Division will provide the t Y or the Curing Party with notice and an opportunity for a healing before the BOARD OF TRUSTEES to determine the amount of time for extension of performance hereunder. The provisions of this Paragraph. 6(a) shall not apply to Paragraphs 2 or 3(a) above. (b) Application On1v'to Property and Easement Areas; Ratification This Amended and Restated Partial Modification of Restrictions applies only to the Property and the Easement Areas, and shall not affect or modify the restrictions imposed upon the other lands described in the Deed which have not previously been waived or modified by the BOARD OF TRUSTEES. Except as expressly modified hereby, the terms of the Original Restrictions and Partial Modification of Restrictions shall remain unchanged in each and every respect, and the same are hereby ratified, approved and confirmed by the BOARD OF TRUSTEES and the CITY as of the date of this Amended. and Restated Partial Modification of Restrictions (it being understood that any previous waiver or modification of the Original Restrictions or the Partial Mortification of Restrictions made with respect to the Property is hereby superseded). (c) Effective Date. Except for Paragraphs 1(i) and (ii) above, this Amended and Restated Partial Modification of Restrictions shall be effective upon the mutual execution and delivery hereof. With respect to the BOARD OF TRUSTEES' consent pursuant to Paragraphs 1(i) and (ii) above, this Amended and Restated Partial Modification of Restrictions shall be effective only upon the Division's receipt of a copy of a fully executed Ground Lease and the Division's confirmation that the Ground Lease is in substantially the same form *as the copy of the proposed Ground Lease that is attached to the Agreement to Enter ("Ground Lease Effective Date"). 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447 F MIADOCS 5570952 3 J SEAL Approved to Form and gaiity By: DEP Attorney Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk iN WITNESS WHEREOF, the BOARD OF TRUSTEES, the CITY and FLAGSTONE have caused this Amended and Restated Partial Modification of Restrictions to be executed on this i 5 day of 5.feR4µ 011.. "fi_. ses: 13 Signature o s itnesa TUN e eL .PrintediTypec Name of Witness Printed/Typed Name of Witness STATE OF FLORDA COUNTY OF LEON BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF TEE STATE OF FLORIDA By: Mike Mrs; Assistant Director, Division of State Lands, State of Florida Department of Envirorcrrientai Protection, as agent for and on behalf of the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida The foregoing g uig instrument was acknowledged before me this day of, 2011, by Mike Long, as Assistant Director, Division of State Lands, State of Florida 9 epartment of Environmental Protection, as agent for and on behalf of the Board of Ttusteea of the Internal Improvement Trust Fund of the State of Florida H personally ,., own to me., / Commission Number. Commission F.xnires: 8 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 5576952 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk CITY OFMIAMi; amunicipal corporation of the State of Florida To..; MartinekPE., City Manager Plush t to Resolution No. Q- 11- 0334' By A • so Priscilla A.'Thompson fff City Clerk APPROVF15 TO INSURANCE (OFFICIAL SEAL) REQ" By :vin Ellis, Director of Risk Management APPROVED AS TO FORM AND CORRECTNESS: By: STATE OF FLORIDA COUNTY OF M1AMI--DADE Julie O. Bru, City Attorney fsd The foregoing instrument was acknowledged before me this j day of 1-6.19 1 2011, by Johnny Martinez, P.B. as City Manager, and Priscilla A. Thompson, as City Clerk, on behalf of the CITY OF MIAMI, FLORIDA. Each of them is personally known to me or pad identification. i E.PEAFZ 0110 ►�YCOMMON iEE0295 FYTh a 2 BmtledTkrt PrintedtIyped/Sfamped Name Commission Number. Commission Expires: 9 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MIADOCS 55709523 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Exhibit "A" Legal Description of Lands Conveyed by Deed No. 19447 LEGALDESCRIPTION (NW QUADRANT -UPLAND PARCEL); COMMENCE AT A POINT SHOWN MARKED BY A 5J8" DIAMETER IRON ROD AND CAP STAMPED F.DO.T SHOWN AS P.T. STA. 25+50 ON 71IE OFFICIAL MAP OF LOCATION .AND SURVEY OF A PORTION OF SECTION 8706, DESIGNATED AS PART OF STATE ROAD A-1-A IN DADE COUNTYY, FLORIDA", PREPARED BY THE STATE ROAD DEPARTMENT OF TSB STATE OF FLORIDA, AS RECORDED IN MAP BOOR 56 AT PAGE 71 OF TAB PUBLIC RECORDS OF DADE COUNTY, PLORIDA, SAID POINT BEING TEE POINT OF TANGENCY OF THE ORIGINAL CENTER EINE OF THE DOUGLAS MACARTHUR CAUSEWAY RUNNING EASTERLY AND SOUTH EASTERLY FROM. TEE WESTERLY LIMITS (WEST BRIDGE) OF WATSON ISLAND AS SHOWN -ON SHEET 3 OF THE STATE ROAD DEPARTMENTRIGHT-OF-WAY MAP SECTION N0. (8706-112) 87060-2117, RBPLSBD MARCH 25, 1959, SAID MOST NORTHERLY CURVE HAVING A RADIUS OF 1432.69 FEET AND A CENTRAL ANGLE OF 62°00'00"; 78SNCE SOUTH 59°51'26" WEST DEPARTING RADIALLY FROM SAID CENTERLINE A DISTANCE OF 987.36 FEET TO A PROWLED BULBERAD LINE TRENCB NORTH 179221" WEST ALONG. SAID BtA TREAD 1114E A DISTANCE OF 238.86 PEET TO THE POINT AND PLACE OF BFGINIEI NG; HENCE NORTH 17°1221" WEST CONTIMiI NO ALONG SAID BULIOITEAD LINE A DISTANCE OF 924.74P5ET TO THE SOUTHERLY RIGHT-OF-WAY LINE OF STATE ROAD A 1-A-- DOUGLAS MACARTHUR. CAUSEWAY; THENCE ALONG SAID SOUTINIR LY RIGHT-OF-WAY UNS THE FOLLOWING COURSES AND DISTANCES; SOUTH 89•I055• EAST A DISTANCE OF 72.89 FEET; THENCE NORTH 86°3949" EAST A DISTANCE OF 67.31. FEET TO NON -TANGENT CURVE CONCAVE TO TFLE NORM/EAST WHOSE RADIAL LINE BEARS NORTH 39"29'18' EAST HAVING A RADIUS OF 160.00 t'Msi AND CENTRAL ANGLE OF 22°0928"; THENCE ALONG SAID CURVE AN ARC LENGTH OF 61.88 FEET; THENCE SOUTH 72°40'15" EAST CONTINUING ALONG SAID SOUTHERLY RIGHT -OP -WAY UNE A DISTANCE OF 276.49 FEET,110 A CURVE CONCAVE 70 THE SOUTHWEST HAVING .A RADIUS OF 600.00 FEET AND CENTRAL ANGLE OF 46°17'39"; THENCE ALONG SAID CILRVE AN ARC LBNi}TE OF 484.79 FEET TO A POINT OF TANGENCY; THENCE SOUTH 26'2236" EAST CONTINUING ALONG THE SOUl'BWWSTERLY RIGHT-OF-WAY LINE OF STATE ROAD A -I -A A DISTANCE OF 19659 FEET; THENCE SOUTH 54°07'39" WEST DEPARTING SAID RIGHT-OF- WAY LINE A DISTANCE OF 532.16 PEET; TE 9CE NORTH 35"5403• WEST A DISTANCE OF 132.741 j1; THENCE SOUTH 54°07'39° WEST A DISTANCE OF 150.14 FEET TO THE POINT OF BEGINNING. LEGAL DESCRIPTION (SUBMERGED PARCEL): • COMMENCHAT A POINT, MARKED BY A5/8° DIAMETER IRON ROD AND CAP STAMPED F.A.O T., SHOWN AS P.T. STA. 25+50 ON THE "OPFICIALMAP OF LOCA7IONAND SURVEY OF PORTION OF SECTION 8706, DESIGNATED AS PART OF STATE ROAD A-1-A IN DADS COUNTY, FLORIDA,' PREPARED BY THE STATE ROAD DEPARTMENT OF THE STATE OF FLORIDA, AS RECORDED 1N MAP B001C 56 AT PAGE 71 OF TEE PUBLIC RECORDS OF DADE COUNTY, FLORIDA SAID POINT BEING THE POINT OF TANGENCY OF THE ORIGINAL CEi MET. LINE OF THE DOUGLAS MACAR'111URCAUSEWAY RUNNING EASTERLY AND SOUTH EASTERLY FROM THE WESTERLY LIMITS (WEST BRIDGE) OF WATSON ISLAND AS SHOWN ON SHEET 3 OF 311.E STATE ROAD DEPARTMENT RIGHT -OF -WAN MAP SECTION N0. (8706-112) 87060-2117, REVISED MARCH 25,1959, SAID MOST NORTEDIELY CURVE BAYING A RADIUS OF 1432.69 FEET AND A CENTRAL ANGLE OF 62°OOEO"; MINCE SOUTH 54°51'26" WEST DEPARTING RADIALLY FROM SAID CENTERLINE A DISTANCE OF 987.36 FEET TO A PROJECTED BULKHEAD LINE; THENCE NORTH17°122I' WEST ALONG SAID BULKHEAD LINE A DISTANCE OF 238.86 FEET TO THE P01NT AND PEACE OF BEGINNING; THENCE SOUTH 49°32'57" WEST DBPARTir40 SAID BUTECHEAD LINE A DISTANCE OF 550.92 FEET TO A POINT OF INTERSECTION OF THE TURNING BASIN LIMIT AS EST'ABLISEBD BY U.S. ARMY CORPS OF ENGINEERS AND POSITIONED BY COORDINATES NORTH 527,878.62 FEET, BAST 926,135.22 FEET (BASED ON NORTE AMBRICAN DATUM 1983-NAD83) WITH TEE NORTHERLY LEM OF THE MIAME MAIN STEP CHANNEL;, THENCE NORT1131°03'50" WEST ALONG TE03 L1MTTS OP SAID TURNING BASIN A DISTANCE OF 428.44 FEET 7O A POINT OF RNTERSECIIDN WITH .7713 BAST RIGHT-OF-WAY LINE OF THE INTRACOASTAL WATERWAY; THENCE NORTH 03°2754° WEST ALONG SAID BAST RIGHT-OF-WAY 1 TAS A DISTANCE OF 874.43 FEET TO A PONT OF INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF SAID DOUGLAS MACARTLLUR CAUSEWAY, SAID POINT OF INTERSECTION BEING A POINT ON A CURVE CONCAVE SOUTHERLY AND HAVING A RADIUS OF 10,71659 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 01°15'15° EAST; THENCE RUN EASTERLY FOR 387.46 FEET ALONG 111E ARC OF SAID CURVE AND ALONG SAID SOUTH/MY RIGHT-OF-WAY LINE, THROUGH A CENTRAL ANGLE OF02°04`IT TO A POINT OF TANGENCY; THENCE SOUTH 89°1055' PAST CONTINUING EASTERLY ALONG THE SAID SOUTHERLY RIGHT-OF-WAY UNR A DISTANCE OF 32A6 FEET MORE OR LESS 70 • A POINT OF INTERSECTION WITH AN EXISTING BULITEEAD LINE; THENCE SOUTH 17°1221' EAST ALONG SAID BULKHEAD LINE A.DISTANCE OP 924.74FEET TO THE POINT OFBEGINNING. BSM:_�'�GL,f"� DATE: 3/29/11 MIADOCS 5570952 2 ZE1T1btt$ Loma:N=10am orStAgtuJ.* essnu]D gfi tArms Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk 11111. nFlieliroofi AGtZ ISM 1D4RY EFECUff 7►• t10i l W5SWt woo, CITY or•1 vuo,.1..yao **ET SECTION 31. 1�t10AEst� EWE 42 DST. MACIT-DATIE ODUNN. FLORIDA. fJUR.Y DESGR®ED•A5 FOLl:515e • COMMENCE AT row OF initeNCY STA1 25+5O OM THE O%7DORRJE OF =C MAL OOMUAS Me= AR64UR'aus0VAY (3d4. A•-1-4) $RIE PROJECT SEMEN Mk e705.112) 5709D-1117 R7GHr or vox wo AS RED W PAT opowss AT Nos 71 OF Mg POERIG moOms OF UMW LADE t 0U111Y, • (assit THENCE surSit0'W FOR urn .FlEr.TO A PQ1ff''0H 1HE . Y R1 HT OF.WAY tit 0F•amok D0UGUS flat ARIHUR • CAUSEWAY. (THE NEXT FIVE (5) COURSE:71RE AtbAD•SAID AsSiertLY Nair DF WAY ME), 7HE]4CE S252230 E FOR 3762 FEET; THENCE Sti '22`E EIR 275.61 FEET• THENCE 504'22'47-E Fog MAO FEET 10 IRE POUir OrCURVA0IStE OF A'CIRCLEAR CURVE TO THE tizFr WINO A RADIUS 0F440.00 FF,ET AHD A• CRNIRA . ANGLE -or 7815'21'; 77JEI'NOE AT& EASTERLY .4WHO THE ARC OF sat CURVE AM Aaa =L5Sri1ICE �Fl '1t THENCE Sa,T3 0a FOR ,47,S3 FEET TO THE ROW T OF Mum of sideuerr V. CwitEXT FNE($) CCUPSES 4RE.ALWH0 soot? MIT OF VAT OF 00JERAL DoAJof. s flat leas GUSEisitt mast sermon. Or FOR 137.58 FEEF WE FOOT OF Row hwDJ0 A RADIUS of 227 FEET AO ACE JT 4. ANGLE OF THE 4515 ; THENCE EASTERLY AND SOUR07u,Y WETS it12 ARO.OF END CURVE AN ARC 1XSTAtHOE OF 180.89. FESr TO IRE PORT OF RE1+dtSE c J#.ATURE OF A 0RCIAAR CURVE TO ,THE LEST RAVIMO A ROCS of 2723.10 Ma AND A CENIRSI_ ANGLE OF t0'SS'ia ; THENCE sate ISIER1•Y AL0N0 71E ARC OF SAID CURVE/yJ ARO iRSTA .E OF b17.4T FEES; ThENOEi45• 64'3O`E FOR 26.48FEET TO A POINT ON CURVE THAT t,5 CONCAVE TD Tot.No1aHaAs7 � rrant= TO THE ARC, OSNO F DCURVE BEARS H4S54.31'E, CURVE THROUDH MOW- ANGLE op 0 43' `45.:P tR AM ARC OfSTA$te 0? 25.14 F220 7AHQ1t$ SESTTI 4'4P FOR t1K.20 FFET: TIME HE4^5a'30•W FOR 1738.45 FEET: - • TH6HCE N250114E FOR 251.11 Ft7 To THE Poor OF tIE00Di1kt. • • Book231811Page783 CFN#20050287972 Exhibit B Page l of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F M1ADOCS 5570952 2 C Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk tatbit31. T.egalDtsc*Ems afSt gi &Access Rud1zedgu,gAt oeminouFT1R TE>fc(RY , .P PORDONS Of WATSON , WHO. CRY OF W1A14?. URN WHIN S CC110N 3l won'WORE PA�RflCt1.J�t Y S! Can' ' COLUM% AT POST or:meow s!AIION i3•iso ON THE C8l41ERLINE . 'OF OENERA. DOUGIAS Um ARTHUR Oil RIKVAY (a& A-1-4) STATE =EDT S£C11IN Ho. (8705-112) 57060-2117 .HT -OF WAY AM* AS RECORDED PLAT j3001( 38 AT PAGE.71 .OF THE muujo RECORDS OF Ala OADE C0U1 w, • • FLORIOA: THENCE S58�' j'2G W TDR 25272 FEET TO A P69lf ON THE • 14ESTMLY RAW. OF AWAY UNE OF GERM. DOUGLAS Atca •ART}Rmm CAUSENhtY. (THE Ma 1.41E (5) COURSES FRE ALM S4 Raiff OF NAY U14E) .1FNFJiCJ: SW22'3S"E FM33..42 FEET;Y S17 5922'E FOR 275.51 FEET; THENCE SO4'22'47'E FOR 251.49 FEET TO • THE Powr OF CURVATURE OF A CIRCUt. CURVE SO NE LEFT WINO 4 RAMS OF T9a00 FEF] AND A CORRAL ANOL! OF 79'15'Zrt mum mummor 2�Y FM 211 1435 6as3s'DaEASIERLY t F .ea FEET ARC OF SAID- cum& AN AR9 DISTANCE S2501.201Y• Fos 52.77 ,FtFf TT TV THE PM or ®EN1IRNC OF 3D4PDRA13 FAsa(EW '8`z MEMOS OONHNIIE SZr401t24.t FOR 198.34 FEET; .TiiEL4OE • N14'55.36'Y! FOR 250.00 FEM. THENQE 823V1'24'E FOR 218.10 FEETt _THDICE Sao' FOR 21.08 r2Er 'TO THE PONE OF OF C� CRtA4AR CURVE 1O-THE mowWAND A MMUS OF 25.00 'FEEET A CENTIdU. AWE OrSTOa'4S-. voice saumstfuly Atom THE ARC OF SARI WAVE AN ARC DISTANCE OF 13.59 FEET TO THE POSIT OF TtEVEHSE CI1R11MTIATE OF A OStWLAR CURVE TO THE 1n'T HAVING A RAMS OF. 240.0$1 Met ItNO A CENTRAL ANOL£ OF 4ri7uc- THENCE SOUTHEASIERV ALONG THE ARC OF SAID cum AN ARC. oisrANci OF 205.59 FEE1; nituog S>L73aY19'7: FOR 15.00 FEET 70174E P0242 OF BECAi1G9O. Book23181/Page784 CFN#20050267972 Exhibit B Page 2 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F Iv3IADOCS 5570952 2 •1 Parfait/1 • lxvidiloottpti= af5ie9mP,Roams and Deedig5RAxras 1804I. DESp UM0/1 EON 7EITMARY PAse:eir ze' • . • POROONS OF WATSON ISLAND, MY OF kilt.. LYNO 917iiYi REOncsi 31, TINNSFEP33 SOWN. RANCE MT URIN-41A0E COWRY FLORIDA, BRNO MORE PARIICOIARLY omaiso AS FOLLOwSt CORAk34CE AT Pater t>F 7N1CHir SMOCK 254E0 ON THE CimEntJ7 OF 018040.. DOt14RAS M c AMUR. C+WSFWAT. (S 1R -1-4 STA1$' PROJECT . SMODN no.(Q7O4-If2} sis s-2tit Mr DE WAY IYPAS At PLAT GOOK AT AAOE 71 OF THE P1. Le RFJ70AER OF:ID O DADE COO71n • ▪ tO4 TitENCC a6g51",t6,1r FOR 362.7E nor TD A POINf.ON.7?R WFSTFRLY 5521T OF WAY We OF OEN5RAI. MOM Rae WAY ME • ' • CAOZM1 FEET; TH fNCE sseoF MR 484,10 FEETMYR Ars° Wm Wawa�E POOR OF OET4Nldti3 OF TENFORARC EASSE004i•'C'i THENCE SSS82'21'5 FOR 143.3t FEEL; THENCE 313•41'14' FOR 18649 FEET: Mid S44254rfFOR 1b4G5 FEET THENCE S52'14•'OG'E FOR 81.413 FEET; TIME 9tf45r8 a FOR 249.es . FEET TO A F OCPT ON 1111E > 3RE5 & wEsTERLy woi r OF RAY L952 OF -mot GENERAL 00UOLAS Mae AEmW7? MUMMY 8410 FONT ALSO SEND ON A 174.17 tR CONCAVE 10 THE.NORTNFiET 14Avtim A Rama or 79200 CENTRAL AhiIEE TY DNZANGE orAtom IRE ARC OF so corn7H262.82 28ow ( A Dom s rzsture � WEETERn •Y ROW OF AA1 LINE ant31.8D E.fasnately FEET To 771E sossr CURYATOE of c NEWFaR ISM -or ?MV51O A man of 24DAO RIT ANO A CE A 05 oinm cow TOTHERAW D4a 44OVso , 174OE R04.0440 IRE 0 ` ee OF SAID cam Ai? ARC • CtIRODUNT. CURVE 113.11f8 Liar nano A RAbN{S or.no.00 rEET AND A mo1Ai. Awns of 3r0Le4E; THFNCE3� ALGNC THE ARC OF SUO CURVE AND AR£ DISTANCE OF.1 9 FIERR THENCE N?i4 55 $ y FoR turn mar THENCE N52•14`08w FOR 90.06 FEET, limelimeE 1444 5'41 1 FO• R 185.00 Ms THENCE 714782t31.V,FOR 11 DeF07'2;Y`17 FOR 11443 FEi7 THE4"CE ni iO'S8 W FOR .0060 S1-T•3538V FOR 8.51 .FEET: THENCE N18'19 le FAT Etze 3HE$CE 57036'4SW FoR 149,03 FEET THENCE'441712'24'LF FOR 212.14 FEC17 'O'tENCE iontrd9'E FAR 4745 FEET To �f FOR T$4.36 EF1:7t � 4F 8EL'ptt?4iG, . . Boak2318VPage785 CR020050267972 Exhibit B Page 3 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447 F M2ADOCS 5570952 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk listdbitH Lewt DrimipticLis t staging, Ace=avdDods* dstas IBM DESOOPROR FOR PVOIitgir EAsaef to . S3 � NAND, 4ZZEAST.. kW& OF' ADAK taw OM gF Of E . tic wor PARTICULARLY OESS E0 As u t cWltr, FrAISI�A WWri7+CE AT row or town cy sTsnom ss•i*Drat THE VD4IERUNE OP. oven pounce tdar APRs T DLR..4-t- =Lire PRaiec7 FAA t000ts-l12) "^' ?f � 17 WIT of NAY NAP AS RECORDED IN FUND* motCE SPAOEtlan 52.79C wows OF mom ow cou) OF, ?ti2,7st CO TD. A os A ON Tt1E THENCE WESTERLY IaDHT OF WAY LmE OF L ter RRT1rttR CA1>SEPAYt fw 'SNO WESTERLY MRT OP HAY LINE FOR 1 7i . rvatmaar FOR 304/0 E E NitroT1 VW FOR 377 .138 FEM THENCE POINT'o E N3S'S1b3'E Fsn :ss.3s r 70 iI E Boo k2318 1/Page786 CFN#20050267972 Exhibit B Page4of7 Amended and Restated Partial Modification ofBeestictions ]Deed Restriction No. 194-47-F MIADDCS 5570952 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk WSW Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk • iFtwv. o• r POOMklnit PF7ttL4kair mom 1Y PORAmH5 Or WATSON 51)410. dry' of laa a. t]'Saf WmQNtT l31, • 'TOWNSIOP SA SOUTH. RANGE-42 SW, M M*-ONX OOHNIY, awe WOE PARSVOUSI4gLY ecsoatam AS P06SDS? . • • OF ick OANRAS Moo AR7iUR C usffGIr MA A- ME1-0J STNE PROJECT sE1ZN Ka._(57 -112) 67OaD-2117 MOW PF Oa MAP AS ammoIH . PU OonIC 55 A7 PAGE 71 9F-•oi PUBIIC PioxfRos of & OADE MONIY, Y WVTHEN15'S1'r 5*27L EU( i0 A POfN�p�t 114E LOC or 8ENOIR. DDUpin tint MT45 dWSEWAV WNW maavr33rw AWNS t08o vamear OP WAY MC :DR 11448 FEET 70 T1E pow OF stow or 8 'DI • T1Y3488.55407'3R'w FOR 47".15-fliCO TNeRE•N '2Yw FOR $4.00 FEET MICE N5407`3VE loft 1a415 10E1 Y0 A POINT ON 7HE AFORESAID Wawa RIGHT OF WAY LINEbr 06NE708. 0OUOiA$ 14a ARROW CAUSEWM' Zo§, 52522'3CE A1ON0 SAS* NEFOILY 1347 OF wAY-U4E FOR N.75 FEEL t0 1)18 PONY Ot' SEGpAtptO• Book23181/Page787 Ci"N#20050267972 Exiu3it B Page 5 of 7 Amended and Restated Partial Modification of Rcsfdctions Deed Restriction No. 19447F MIADOCS 5570952 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk BOOK 23131 PAGE 0789 LAST PAGE Brhibit S Loyd Deariptiois of Staging, Amen sad Dredgtog. aeea# 1 Book23181/Page789 CFN#20050267972 Page 15 of 15 Exhibit33 Page 7 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447-F MTADOGS 55709322 Exhibit "C" FLAGSTONE JUDGMENTS Beach Tower XZC -- Judgment in amount of $23 6,203.95 Miller Legg — Judgment in amount of $3,989,19 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Lillian Ser -- Judgment entered in favor of Ser in amount of approximately $674,000, plus interest FIagstone currently prosecuting independent action against Ser. Stephen James Assoc — Judgment in amount of $33,155.82 (settlement stipulation will be signed shortly by Flagstone) Americas Media Group Worldwide -- Judgment in amount of $336,924.91 (settlement stipulation will be signed shortly by Flagstone) Pandi sco (New York judgment) — Judgment in amount of $131,471.18 Exhibit C Page 1 of 1 Amended and Restated Partial Modthcation of Restrictions Deed Restriction No_ I9447 F ML4DOCS 5570952 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk From: Torre, Henry Sent: Monday, April 07, 2014 5:48 PM To: Nathalie Goulet (ngoulet@flagstonegroup.com) Cc: Bravo, Alice; Bustamante, Aldo Subject: FW: Watson Island Nathalie, Per our earlier conference call, the following are the agreed upon actions. 1- Per email below, Flagstone will not agree to pay off the existing judgments and continue with the payment schedule. Please confirm the payment schedules. 2- Flagstone will retain Counsel to discuss viable "administrative cure" options with the State. Specifically, Flagstone will discuss the option identified today by the City Attorneys office. 3- Flagstone will get back to us tomorrow on disclosing the new partnership entity. Thanks Nathalie. Enrique (Henry) Torre Director City of Miami Public Facilities Division /Asset Management Division 444 SW 2nd Avenue, 3`d Floor Miami, Fl. 33130 Phone: (305) 416-1458 Facsimile: (305) 416-2156 E-mail: htorre@miamigov.com From: Sawyer, Thomas[mailto:Thomas.Sawyerk@dep.state.fl.us] Sent: Friday, April 04, 2014 6:05 PM To: Bravo, Alice Cc: Torre, Henry; ngoulet@flaastonegroup.com; Woolam, Scott; Campanile, Nick; Fenton, Katy; Heiser, Gary; Leopold, Matt Subject: RE: Watson Island Hi Alice —1 hope you are well and want to take the opportunity to say it was a pleasure meeting you on March 26, 2014. After the our meeting on March 26, I reviewed your post -meeting e-mail (below) and feel the need to clarify that the debate surrounding Chapter 6451, Laws of Florida 1913 versus Chapter 8305, Laws of Florida 1919, was not the "go forward" question that was sought to be addressed after our meeting; rather, the Division of State Lands would like to have the City of Miami, in concert with Flagstone, address the following: 1. There appear to be certain judgments that remain unsatisfied notwithstanding the January 17, 2012 deadline set forth in the Amended and Restated Partial Modification of Restrictions (the "Private Use Modification"), to wit: Americas Media Group Worldwide, LLC ($127,609.40), Totem Communications Group, Inc., f/k/a Redwood Custom Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Communications, Inc. ($40,862.20) and Pandiscio, inc. ($61,594.10). Please let us know when those judgments will be satisfied of record so that one of the monetary defaults in the Private Use Modification can be taken into consideration; 2. Notwithstanding the fact that the monetary default referenced above triggered an automatic and immediate termination of the Private Use Modification, you were going to have legal counsel provide our Office of General Counsel a basis for an "administrative cure" (keeping in mind the clear language in the Private Use Modification that the cure rights in paragraph 5 of that agreement did not apply to this time specific monetary default). 3. A disclosure of the restructured internal ownership of Flagstone has also been requested. My thought is that something similar to a Section 286.23, Florida Statutes, disclosure affidavit would be ideal in this regard. Finally, I want to confirm that, aside from the two of us, the attendees of the March 26 meeting are all copied on this e-mail, to wit: Henry Torre, Nathaiie Goulet, Scott Woolam, Nick Campanile, Katy Fenton, Gary Heiser and Matt Leopold. Again, it was a pleasure meeting you on March 26, and 1 look forward to working with you in the future. Have a great weekend. From: Bravo, Alice Finailto:abravoPmiamigov.coml Sent: Wednesday, March 26, 2014 5:36 PM To: Leopold, Matt; Sawyer, Thomas; Fenton, Katy Cc: Diaz, Veronica; Torre, Henry Subject: Watson Island Importance: High Good Afternoon, First and foremost, I would like to thank you and the others that attended the meeting this morning, for your time and consideration on this matter. Below I have included the first email 1 received last year regarding the 1919 Special Legislative Act (SLA). The conference call took place on June 12, 2013 (please see the attached email I received in advance of the phone conference with the 1919 SLA language itself). Veronica Diaz, Assistant City Attorney was the other City representative on the call with me. Most of the FDEP personnel cc'd on the email below participated on the call. During the call, 1 was informed that FDEP had acknowledged the validity of the 1919 SLA and therefore the next Deed Waiver for Flagstone to be requested from the TIITF would make reference to the 1919 SLA in lieu of the 19447 Deed. 1 then questioned the need for a waiver since the only restriction referenced in the 1919 SLA referred to "Municipal Purpose" only. We were coordinating further discussions regarding the need for a waiver when Related Group dropped out of the project. As discussed this morning, the issue above can be discussed in the future as we hopefully develop a long-term global solution. In the short term, we look forward to working with you on bringing the Flagstone issue to resolution. Please feel free to call me on my cell 305-458-7541(cell) should you require any additional information. Thanks, Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Alice N. Bravo, P.E. Deputy City Manager - Chief of Infrastructure City of Miami Miami Riverside Center 444 S.W. 2nd Avenue - 10th Floor Miami, FL 33130 Office: 305-416-1091 Fax: 305-416-1019 Email: abravo@miamigov.com From: Leftheris, James[mailto:James.Leftheris@dep.state.fl.us] Sent: Friday, June 07, 2013 11:31 AM To: Bravo, Alice Cc: Campanile, Nick; Leeds, Stephanie; Heiser, Gary; Karter, Marjorie; Reardon, Bevin Subject: Conference Call Importance: High Alice, We would like to schedule a conference call next week with the City to discuss the 1919 Special Legislative Act (Chapter 8305, Laws of Florida). Below are some dates and times our staff are available. Please let us know if any of these dates and times will work for you and your staff. If not, please let us know and we can look at some alternative dates and times. June 12, 2013 - 10:00 a.m. to 11:00 a.m. June 13, 2013 - 2:00 p.m. to 3:00 p.m. Thanks and please call me if you should have any questions. Jim Leftheris Division of State Lands (850) 245-2555 Please take a few minutes to share your comments on the service you received from the department by clicking on this link. DEP Customer Survey. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk �.1 RE CORD FOR From: Heiser Gary Sent Monday, April 14, 2014 11:04 AM To: Sawyer, Thomas Cc Reardon, Bevin Subject: FW: Watson island Attachments Flagstone Settlement Status 04-11-14.pdf; Greenwich Ltr 04-11-14.pdf; Economic Impact Study 3-14.pdf eyes ryc1- o with regard to no.4, as you know a document does not have to be recorded to be valid or effective. the Notice of Termination was sent to Flagstone and thus Flagstone had notice . More importantly, DEP was under no legal or contractual obligation to provide Flagstone with the Notice of Termination because the Amended and Restated Modification of Deed Restrictions automatically terminated based on Flagstone failing to satisfy all judgments by the date specified in the Amended and Restated Partial Modification of deed restrictions and the cure provisions did not apply to this default. Therefore, DEP does not have the authority to administratively reinstate the Amended and Restated partial Modification of Deed Restrictions. From: Nathatie Goulet[maiito:ngoulet@flagstonegroup.corn] Sent: Sunday, April 13, 2014 5:19 PM To: Bravo, Alice; Sawyer, Thomas Cc: Torre, Henry; Woolam, Scott; Campanile, Nick; Fenton, Katy; Heiser, Gary; Leopold, Matt Subject: RE: Watson Island Dear Tom, It was likewise a pleasure .meeting you at our March 26, 2014 meeting. Flagstone has been working diligently in providing you with responses to your requests as per our meeting of March 26, 2014 and your email of April 4, 2014. In working towards a prompt resolution of the matter, please note the following: 1. As of April 11, 2014, Flagstone has deposited the total outstanding balance due under the settlement agreements into an Escrow account with Shutts & Bowen LLP, with directives for the funds to be disbursed directly to the payees under the settlement agreements for the total outstanding balance due each such payee simultaneously with recording of Satisfactions of Judgment, upon written confirmation from the DEP that -the Amended and Restated Partial Modification of Deed Restrictions continues to be in full force in effect I will provide you with the Escrow Letter from Shutts & Bowen LLP upon receipt of same tomorrow. Attached, for your reference, is the current payment plan under the settlement agreements and the current outstanding balances as of April 11, 2014 (which include the March, 2014 payments; the last summary sent to Ms.. Katy Fenton did not include the March, 2014 payments). 2. Attached, please find a letter from Flagstone's financial advisor, The Greenwich Group International, disclosing the partner under current LOI with Flagstone. 3. Also attached, please find a copy of our economic impact study previously sent to Ms. Katy Fenton, Mr. Matthew Leopold and Mr. David Clark. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk On page 1 of the study, you will see that during the project's first 3 years of operation, the State is projected to receive more than $98.1 Million in sales tax revenue, and $36 Million annually in sales tax revenue beginning on the fourth year of operation of the project. On page 2 of the study, you will also see that during construction of the project, the State is projected to realize more than $20 Million in sales tax revenue, based on the purchase of construction materials, fixtures, furniture, equipment, operating supplies and information technology. Also on page 2 of the study, you can see the revenues to the State from the ground lease payments: Approximately $1.38 Million during the construction period and through the projects first 3 years of operation and $556,000 annually beginning in the fourth year of operation. On page 3 and as summarized on Table 2 on page 7 of the study, you can see the jobs created from the development and operation of the project: 9,987 non -recurring (direct and indirect) and 2,930 annual recurring (direct and indirect). We believe that strong consideration should be given to the aforementioned revenues and jobs that will be created as a result of this project. If this project does not commence by June 2, 2014, the State will see a delay in the above -cited sales tax revenue by a minimum of 3 years. Obviously, the creation of the 2,930 annual recurring jobs and 9,987 non- recurring jobs will be delayed as well. 4. With regard to the administrative relief discussed at our March 26, 2014 meeting, it is Flagstone's and the City's firm stance that such is vested within the authority and powers of the DEP; based upon the premise that, in order to modify any document already of record, a new document modifying the document already of record, must be recorded. Since there are no documents of record modifying the Amended and Restated Partial Modification of Deed Restrictions and since the DEP notified Flagstone of the termination of the Amended and Restated Partial Modification of Deed Restrictions via the administrative June 4, 2012 letter, the DEP shall have the same authority and power to retract and/or supersede such letter via a new letter affirming the enforcement of the recorded Amended and Restated Partial Modification of Deed Restrictions. Alice and 1 would like to schedule a conference call with you, at your earliest convenience, to discuss each of the above items in more detail. Please, let us know your earliest availability. Thank you for your attention in the instant matter. We are looking forward to moving forward with you in resolving the instant matter so that we can move forward with commencement of construction this June, 2014. Very truly yours, Nathalie H. Gould, Esq. General Counsel to Flagstone Property Group LLC 888 MacArthur Causeway Miami, Florida Direct Tel. (305)206-8761 Fax (305)531-3748 From: Bravo, Alice [abravo@miamigov.com] Sent: Thursday, April 10, 2014 6:36 PM To: Sawyer, Thomas Cc: Torre, Henry; Nathal[e Goulet; Woolam, Scott; Campanile, Nick; Fenton,Katy; Heiser, Gary; Leopold, Matt Subject: Re: Watson Island Good afternoon Torn, 2 Submitted into the public record in connection with a. itemCie.i l on 5ftlItt City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk I apologize for the delay in responding to you. However, we have been working on the resolution to the items below. To answer your question, I believe your email cc's do include all attendees of the meeting. Ms Goulet will be forwarding favorable information to you tomorrow regarding the items below_ Would you be available for a brief phone call tomorrow afternoon regarding the research on Item #2? Once again, we would like to thank all of you for your support of this project which has numerous beneficial aspects. Thanks, Alice Alice N. Bravo, P.E. Deputy City Manager City of Miami Cell: 305-458-7541 Sent from my iPhone On Apr 4, 2014, at 6:05 PM, "Sawyer, Thomas" cThomas.Sawyeradep.state.fl.us> wrote: Hi Alice —1 hope you are well and want to take the opportunity to say it was a pleasure meeting you on March 26, 2014. After the our meeting on March 26, I reviewed your post -meeting a -mail (below) and feel the need to clarify that the debate surrounding Chapter 6451, Laws of Florida 1913 versus Chapter 8305, Laws of Florida 1919, was not the "go forward" question that was sought to be addressed after our meeting; rather, the Division of State Lands would like to have the City of Miami, in concert with Flagstone, address the following: 1. There appear to be certain judgments that remain unsatisfied notwithstanding the January 17, 2012 deadline set forth in the Amended and Restated Partial Modification of Restrictions (the "Private Use Modification"), to wit: Americas Media Group Worldwide, LLC ($127,609.40), Totem Communications Group, Inc., f/k/a Redwood Custom Communications, Inc. ($40,862.20) and Pandiscio, Inc. ($61,594.10). Please let us know when those judgments will be satisfied of record so that one of the monetary defaults in the Private Use Modification can be taken into consideration; 2. Notwithstanding the fact that the monetary default referenced above triggered an automatic and immediate termination of the Private Use Modification, you were going to have legal counsel provide our Office of General Counsel a basis for an "administrative cure" (keeping in mind the clear language in the Private Use Modification that the cure rights in paragraph 5 of that agreement did not apply to this time specific monetary default). 3. A disclosure of the restructured internal ownership of Flagstone has also been requested. My thought is that something similar to a Section 286.23, Florida Statutes, disclosure affidavit would be ideal in this regard. Finally, I want to confirm that, aside from the two of us, the attendees of the March 26 meeting are all copied on this e-mail, to wit: Henry Torre, Nathalie Goulet, Scott Woolam, Nick Campanile, Katy Fenton, Gary Heiser and Matt Leopold: 3 Submitted into the public record in connection with pE. o item ` p .1 on Sin City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Again, it was a pleasure meeting you on March 26, and 1 look forward to working with you in the future. Have a great weekend. From: Bravo, Alice (mailto:abravo@miamigov.comj Sent: Wednesday, March 26, 2014 5:36 PM To: Leopold, Matt; Sawyer, Thomas; Fenton, Katy Cc: Diaz, Veronica; Torre, Henry Subject Watson Island Importance: High Good Afternoon, First and foremost, I would like to thank you and the others that attended the meeting this morning, for your time and consideration on this matter. Below I have included the first email I received last year regarding the 1919 Special Legislative Act (SLA). The conference call took place on June 12, 2013 (please see the attached email I received in advance of the phone conference with the 1919 SLA language itsetf). Veronica Diaz, Assistant City Attorney was the other City representative on the call with me. Most of the FDEP personnel cc'd on the email below participated on the call. During the call, I was informed that FDEP had acknowledged the validity of the 1919 SLA and therefore the next Deed Waiver for Flagstone to be requested from the TIITF would make reference to the 1919 SLA in lieu of the 19447 Deed. I then questioned the need for a waiver since the only restriction referenced in the 1919 SLA referred to "Municipal Purpose" only. We were coordinating further discussions regarding the need for a waiver when Related Group dropped out of the project. As discussed this morning, the issue above can be discussed in the future as we hopefully develop a Tong -term global solution. In the short term, we look forward to working with you on bringing the Flagstone issue to resolution. Please feel free to call me on my cell 305-458-7541 (cell) should you require any additional information. Thanks, Alice N. Bravo, P.E. Deputy City Manager - Chief of Infrastructure City of Miami Miami Riverside Center 444 S.W. 2nd Avenue - 10th Floor Miami, FL 33130 Office: 305-416-1091 Fax: 305-416-1019 Email: abravo@miamieov.com From: Leftheris, James [rnailto:James.L.eftherisfa)dep.state.fl.us] Sent: Friday, June 07, 2013 11:31 AM To: Bravo, Alice Cc: Campanile, Nick; Leeds, Stephanie; Heiser, Gary; Karter, Marjorie; Reardon, Bevin Subject: Conference Call Importance: High Alice, 4 Submitted into the public record i nconnection with itemon 5j8/14 City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk We would like to schedule a conference call next week with the City to discuss the 1919 Special Legislative Act (Chapter 8305, Laws of Florida). Below are some dates and times our staff are available. Please let us know if any of these dates and times will work for you and your staff. if not, please let us know and we can look at some alternative dates and times. June 12, 2013 - 10:00 a.m. to 11:00 a.m. June 13, 2013 - 2:00 p.m. to 3:00 p.m. Thanks and please call me if you should have any questions. Jim Leftheris Division of State Lands (850) 245-2555 Please take a few minutes to share your comments on the service you received from the department by clicking on this link. DEP Customer Survey. 5 Submitted into the public record in connection with • item :i° on Stkl1 y City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Flagstone Satisfactions of Judgment and Settlement Agreements Status as of 04/11/2014 1. 13.eachTower LLC Judgment: $263,203.95 Judgment Satisfied March 1. 2012 Attorneys and/or representatives of BeachTower LLC were unavailable and/or non-existentto respond to Flagstone requests to satisfy judgment prior to February, 2012 2. Miller Lena& Associates. Inc. Judgment: $3.989.19 Judgment Satisfied August 29, 2011 3. Lilian Ser Judgment: $674,000.00 Judgment Satisfied October 13, 2011 4. StephenJamesAssociates, Inc. Judgment: $33,155.82 Stipulation for Settlement entered into September 30. 2011 Judgment Satisfied July 23,2013 5. Americas Media Group Worldwide, LLC Judgment: $336,924.91 Settlement Agreements were entered into separately by Americas Media Group Worldwide LLC ) for the sum of.$255,200.60.) and Redwood Custom Communications, Inc. ( for the sum of $81,724.00, which had been assigned by Americas Media Group Worldwide to Redwood Custom Communications for the invoices incurred by Redwood ) Americas Media Group Worldwide, LLC Stipulation for Settlement entered into September 30, 2011 Settlement Amount: $255,200.60 Monthly Payments: $4,253.34 Payments To Date (From September 30, 2011 through present- 31 payments): $131,853.54 Current Balance: $123,347.06 Terms: 60 months, beginning September 30, 2011 Redwood Custom Communications, Inc. Stipulation for Settlement entered into September 30, 2011 Settlement Amount: $81,724.00 Monthly Payments: $1,362.06 Payments to Date (From September 30, 2011through present- 31 payments): $42,223.86 Current Balance: $39,500.14 . Submitted into the public record in connection with �a `item •l[,on City Clerk 1 It Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Term: 60 months, beginning September 30, 2011 6. Pandiscio SettiernentAgreement entered into September 27, 2011 Settlement Amount: $119,588.00 Monthly Payments: $1,933.13 Payments to Date (From September 30. 2011through present- 31 payments): $59,927.03 Current Balance: $59.660.97 Term: 60 months. beginning September 30, 2011 Total Current Outstanding Balance: $222,508.17 2 Submitted into the public record in connection with item in on 511(1!t City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Project Summary Modification of Deed Restriction for Proposed Development on Watson Island by City of Miami /The Related Group By: DSL Project Management Team Nick Campanile September 3, 2013 Submitted into the public The Related Group/City of Miami Project Summary record for item(s) CA.7 9/3/2013 on 04/28/2016, City Clerk Pg. 2 Brief History of the City of Miami/Flagstone Project The State conveyed an area of submerged land in Biscayne Bay (including the present Watson Island) to the City of Miami (the City) in the Special Legislative Act of 1919 (Chapter 8305, Laws of Florida, Deed Book 361, Page 353). Subsequently, in 1949 (Trustee's Deed No. 19447), the State conveyed the Watson Island and surrounding submerged land area to the City. Both conveyances were for no consideration and restrict the property for municipal use only. In the early 2000's, Flagstone Island Gardens LLC (Flagstone) entered into a ground lease with the City of Miami (City) to develop a mega yacht marina and mixed use development on 10.70 acres of uplands and 13.35 acres of submerged lands on Watson island in Biscayne Bay. Since the deed restricted the property to municipal use only, the City requested from BOT a Partial Modification of the public purpose restrictions. In 2004, the BOT approved a Partial Modification of Restrictions Deed No. 19447-F to allow the City to enter into the public -private profit making partnership with Flagstone. The City agreed the state would receive 15% of the City's revenue from the ground lease in consideration for modifying the restriction. In addition, the State would receive a guarantee that Flagstone would spend at least $1,000,000 on specific public improvements. The deal was slightly restructured in 2011 and approved by the BOT with the State's percentage remaining at 15% but also included 15% of preconstruction rental payments, and it required Flagstone to discharge of all judgments by January 17, 2012. Flagstone did not meet the deadline to discharge all judgments, and the Amended and Restated Partial Modification of Restrictions automatically terminated per the agreement. In June of 2012, the City and Flagstone requested BOT approval for more time to discharge the judgments with the State's percentage remaining at 15% of the City's gross rent. Negotiations stopped when the State's stipulation for 50% of the City's lease revenue was rejected by the City. It should be noted that the effect of the 1919 Special Legislative Act was not considered during these negotiations. Brief Description of Proposed Project The Related Group has been working with the City and Flagstone to continue the development. The most current plans are for two luxury hotels, 500,000 square feet of retail space, and a public/private mega yacht marina with construction estimated to be completed by 2017. The retail component has been increased from the original plan, which results in a larger footprint of the land to be leased from the City. The City has been informed that it must request from BOT a Partial Modification of the 1949 deed public purpose restrictions to allow the development. A formal request from the City has not been made at this time. Moreover, the City will need to request modification of the restrictions from the 1919 Act. The Related Group/City of Miami Project Summary 9/3/2013 Pg. 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Appraisal The City ordered an appraisal to estimate market rent for the additional commercial space only. The City maintains that the original footprint is already under lease (City has been receiving payments from Flagstone since 2004), and therefore a new lease rate should be applied only to the additional area. DSL should engage a third party appraiser to review the appraisal to ensure that the lease rate is consistent with the market since the State will be receiving a percentage of the rent paid to the City. Timing The City has not made written formal request for the State to modify the restrictions. They have ordered appraisal work for the additional lease area but did not include the area currently under lease to Flagstone. Once a formal request for modification of the restrictions is made by the City, DSL will need a copy of the appraisal report of the new additional lease area for review. If it is determined that the entire lease area should be appraised to establish the current fair compensation to the State, then an additional time will be needed for a new appraisal. After market rent has been concluded, negotiations can begin. Once all involved parties come to an agreement on the terms of the partial modification of restrictions, DSL will prepare the modification document, request legal review, and then the BOT agenda process can begin. The estimated timeframe for each step is as follows: 47, � _..__ x .l y,��:� �§tim4ted Ti meframg- Receive request for modification from current owner 30 days Title Determination 30 days Appraisal and Review 45 days Negotiation 30 days Document Preparation 14days Legal Review 30 days BOT Agenda Proces 45days Negotiation Strategy Presently, there is no agreement between the State and the City since the Partial Modification of Restrictions expired in 2012. Thus, the State can push for an agreement in which compensation is a percentage of current market rent (instead of a percentage of the City's rent revenue which was established several years ago when the lease commenced). As DSL moves forward toward negotiating an agreement with the City, the starting point for negotiating a percentage must be identified. Compensation may either be a percentage of the City's lease The Related Group/City of Miami Project Summary 9/3/2013 Pg. 4 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk revenue (comprised of rent payments stipulated in the existing lease and current market rent for the additional area), or a percentage of current market rent for the entire development. A new appraisal will be needed if the decision is made to negotiate a percentage of current market rent for the entire development area. The percentage that the State receives should be reasonable and proportionate to the significance of the restriction. Most recently, the BOT approved a Partial Modification in 2011 in which the State's percentage of the gross lease revenue was 15%. However, modification of the public -use -only restriction is essential to the proposed development and therefore should command a significant portion of the City's lease revenue. The State's compensation could reasonably be greater than 50% of the City's lease revenue considering that the City's ownership allows only municipal use, and consequently the proposed lease and development will not be possible without the modification. However, a percentage slightly lower than 50% may be more reasonable considering the risk and management that would largely be the burden of the City and not the State. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Project Summary Modification of Deed Restriction for Proposed Development on Watson Island by City of Miami / The Related Group By: DSL Project Management Team Nick Campanile September 3, 2W13 The Related Group/City of Miami Project Summary 9/3/2013 Pg. 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Brief History of the City of Miarni/Flagstone Project The State conveyed an area of submerged land in Biscayne Bay (including the present Watson Island) to the City of Miami (the City) in the Special Legislative Act of 1919 (Chapter 8305, Laws of Florida, Deed Book 361, Page 353). Subsequently, in 1949 (Trustee's Deed No. 19447), the State conveyed the Watson Island and surrounding submerged land area to the City. Both conveyances were for no consideration and restrict the property for municipal use only. In the early 2000's, Flagstone island Gardens LLC (Flagstone) entered into a ground lease with the City of Miami (City) to develop a mega yacht marina and mixed use development on 10.70 acres of uplands and 13.35 acres of submerged lands on Watson Island in Biscayne Bay. Since the deed restricted the property to municipal use only, the City requested from BOT a Partial Modification of the public purpose restrictions. In 2004, the BOT approved a Partial Modification of Restrictions Deed No. 19447-F to allow the City to enter into the public -private profit making partnership with Flagstone. The City agreed the state would receive 15% of the City's revenue from the ground lease in consideration for modifying the restriction. in addition, the State would receive a guarantee that Flagstone would spend at least $1,000,000 on specific public improvements. The deal was slightly restructured in 2011 and approved by the BOT with the State's percentage remaining at 15% but also included 15% of preconstruction rental payments, and it required Flagstone to discharge of all judgments by January 17, 2012. Flagstone did not meet the deadline to discharge all judgments, and the Amended and Restated Partial Modification of Restrictions automatically terminated per the agreement. In June of 2012, the City and Flagstone requested BOT approval for more time to discharge the judgments with the State's percentage remaining at 15% of the City's gross rent_ Negotiations stopped when the State's stipulation for 50% of the City's tease revenue was rejected by the City. it should be noted that the effect of the 1919 Special Legislative Act was not considered during these negotiations. Brief Description of Proposed Project The Related Group has been working with the City and Flagstone to continue the development. The most current plans are for two luxury hotels, 500,000 square feet of retail space, and a public/private mega yacht marina with construction estimated to be completed by 2017. The retail component has been increased from the original plan, which results in a larger footprint of the land to be leased from the City. The City has been informed that it must request from BOT a Partial Modification of the 1949 deed public purpose restrictions to allow the development. A formal request from the City has not been made at this time. Moreover, the City will need to request modification of the restrictions from the 1919 Act. The Related Group/City of Miami Project Summary 9/3/2013 Pg. 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Appraisal The City ordered an appraisal to estimate market rent for the additional commercial space only. The City maintains that the original footprint is already under lease (City has been receiving payments from Flagstone since 2004), and therefore a new lease rate should be applied only to the additional area. OS! should engage a third party appraiser to review the appraisal to ensure that the lease rate is consistent with the market since the State will be receiving a percentage of the rent paid to the City. Timing The City has not made written formal request for the State to modify the restrictions. They have ordered appraisal work for the additional lease area but did not include the area currently under lease to Flagstone. Once a formal request for modification of the restrictions is made by the City, DSL will need a copy of the appraisal report of the new additional lease area for review. if it is determined that the entire lease area should be appraised to establish the current fair compensation to the State, then art additional time will be needed for a new appraisal. After market rent has been concluded, negotiations can begin. once all involved parties come to an agreement on the terms of the partial modification of restrictions, DSl. will prepare the modification document, request legal review, and then the BOT agenda process can begin. The estimated timeframe for each step is as follows Receive request for modification from current owner 30 days Title Determination - 30days Appraisal and Review .45days Negotiation 30 days `Document Preparation 14 days Legal Review 30days BOT Agenda Proces 45days Negotiation Strategy The Related Group/City of Miami Project Summary 9/3/2013 Pg. 4 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 L on 04/28/2016, City Clerk Chapter 8305 (Submerged Lands Granted to City of Miami) Cha pter8305 Deed19447 - DMID127146 DMID107168 vittt.ttf;' sr Prepared by Terry D. Smith November 1. 2012 Florida Department ol Envitonrrentat Protection Division of State Lands Bureau of Survey and Mappino GIS and Land Reconis totappno Section Rm 315-C Carr 13LNIcling 3800 Commonwealth Biva Tallahassee. Ft 32359 Phone 850-245-2576 LC.111.4.1 0 0 25 0.5 0.75 1 Miles FOR ILLUSTRATIVE AND INFORMATIONAL PURPOSES ONLY nT, VINNOSISOMMIMOS' State hinds GIS Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Chapter 8305 (Submerged Lands Granted to City of Miami) Chapter8305 Deed19447 - DMID127146 DMID107 168 tared by Terry D. Swann ember 1. 2012 tie Department of Environmental Protection Mott of State Lands :au of Survey and Mapping and Land Records Mapping Section 315-G Carr Building 3 Commonwealth Blvd. ahaSsee, FL 3239 Miles FOR ILLUSTRATIVE AND INFORMATIONAL PURPOSES ONLY LP'.J.,?now., tun.1 tale ••v tC.d RT.ah. Napya S.,r... fita t t -anti4 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk MSNESSIENNW September 12, 2013 Ms. Alice Bravo Assistant City Manager 444 S.W. 2nd Ave. Miami,FL 331.30-1910 Dear Ms. Bravo: FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION MARJORY STONEMAN DOUGLAS BUILDING 3900 COMMON WEALTH BOULEVARD TALLAHASSEIS, FLORIDA 32399-3000 Rt(.'I scol T GOVERNOR i()R IIERSC:Elf1. T. VINY RD R. SECRETARY As you are aware, the Division of State Lands (DSL) and the City of Miami staff have been working together for several months on two separate proposed developments that would each .require a partial modification to the deed restrictions_ The Genting Group, parent company of Resorts World Miami (RWM), acquired the Miami Herald Building in 20I.1 with plans to redevelop the bayfrontsite to include a hotel, condominium resort with commercial space and a 50-stip mega yacht marina. DSL staff met with RWM and Spencer Crowley, Akerman Senterfitt, in March of this year to assist with a possible request for modification of deed restrictions for this project Likewise, DSL staff met with Reggie L. Bouthiilier, Greenberg Traurig, P.A., in May of this:year regarding plans of The Related Group (TRG) to develop the Watson Island property. As discussed, the City will need to provide the following actions in order to move forward with these two projects: Request from the Board of Trustees of the Internal Improvement Trust.Fund a Partial Modification ofthe 1949.deed municipal use restriction to allow the developments. Moreover, the City will need to request modiftcation of the municipal use restriction from the 1919 Legislative Act. A formal request from the City has not been made at this time. Provide title work for botti:properties to verify o*nership. The title work is to include applicability of the 1919 Legislative Act to both development sites. Provide status of the Watson Island project and TRG's involvement. We stand ready to move forward on these projects. However, until we receive a written .request to modify the deed restrictions or we are-notified.of anything we can do to assist you, we will redirect ourteam efforts to other projects. If you have any questions, please don't hesitate to contact me at 850-245-2555. We look forward to working with you in the future. Sincerely, Nick Campanile, PS114 Program Manager Division of State Lands Cc: Governor Rick Scott Attorney General Pam Bondi CFO Jeff Atwater Agriculthre Commissioner Axlatrt Putnam Insir- it7..c1LtJel us Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk AFFIDAVIT Before me, the undersigned authority, personally appeared ("Affiant"), who being by me first duty sworn, on oath, deposes and says: 1. In 2002 the City of Miami agreed to lease approximately 24.2 acres of city -owned uplands and submerged lands on Watson island to Flagstone Properties, LLC for the construction of a mega - yacht marina and mixed -use waterfront development (the "Project"). 2. i am the (insert title) of name of entity 3. Affiant certifies that to the best of Affiant's knowledge, after making all appropriate inquiries, name of entity a. is not the subject of a pending bankruptcy proceeding, b. has no unsatisfied judgments entered against it in the State of Florida, c. has satisfied all state and local taxes for which it is responsible in the State of Florida, and d. is not aware of any other matters pending or threatened against it or affecting it that might impair its financial ability to undertake and operate the Project. 4. Affiant hereby certifies that to the best of Afliants knowledge, after Making all appropriate inquiries, is in compliance with all applicable anti -terrorism laws, regulations, rules and executive Orders, including bitnot limited to, the USA PATRIOT Act of 2001 (Pubil. 107-5.6), 18.UJ S.C. §§ 2339A-C and U.S. Presidential Executive Orders 12947 and 3.3224. 5. Affiant further certifies that to the best of Affiantts knowledge; after making all appropriate inquires, neither , any subsidiary of nor any entity of which is a subsidiary is engaged in any business or providing any goods or services in:lran or Syria. 6. Affiant also certifies that to the best of Affiant's knowledge, after making all appropriate inquires, neither , any subsidiary of .1 nor any entity of which is a subsidiary is listed on either the "Scrutinized Companies with Activities in Sudan List" or the "Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List" as referenced in Section 215.473, Florida Statutes. FURTHER AFFIANT SAYETH NOT. STATE OF COUNTY OF Sworn to and subscribed before me this _ day of 20_, by personally known to me or produced as identification. . He/she is Notary Public, State of Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk • Lighthoulut otel - Operated by the Regent:Group 11 . 250 standard rooms with 50 time-shared licensed _suites,,Ortes a Restaurants/Retail -•_ I ASmany. as 14 restaurants varying in menu 'ricef.::`, • = '..• •!--"InternatTonal mix of retail shops not currently in •- i-,.; Return to the City , ~ ,..• c*- ` ,, $1 miiliorr'per year for construction rer ; ", Pzs r h f! • '.°.'. , - , . • $2 million,per;year as guar'rnteed ntinimd rent . i; roject:ope i • 1 % of gross re1renue from project corn `- nents,and� r . c m timeshare Tice r :". µ '', ' .tA .Z For more information; Log r RV �v�r. Alumni 414 http:/fwww.cl' . MO Tune into City of Miami Teievisidf'(C 9)1....r L.Q:AM and fi41 PM;'br Call -Ballot Hotline: (305).579-6493 ,, '+w" `.".="14:. i_ Ballot Question # 1 Watson Island Development Island Gardens by Flagstone Properties, LLC The City of Miami requested proposals for the- rodevetopment of the wasting 1.3.4-acna Watson island Marina and the adjacent 10.8-acres of undeveloped land into -a world Mass marina -and mixdd use water- front development to emphasize diverse and public open spaces, psdestrian activity, and offer a wel- coming mix of uses to residents and visitors. After a competitive process, the City Commission chose Flagstone Prdperties, LLC tocreate -a mixed -use development on Watson island. The development features a fish market, marina facilities, public gardens, a Maritime gallery, two hotels, as many as 14 restaurants, and retail shops - Island Gardent. Flagstone will invest $281 million in the project. No -pubic lungs are involved. Details of the Flagstone prdposaI Include: Job Creation • Approximately 5,000 construction jobs during two year construction period • Approximately 2,500 permanent jobs will be created • Will- create a Skills 'training Center and an .Employment Career Center • Will enter into a "First Source" Hiring Agreement to hire -City of Mini -residents Parks . • SO% of the minimum base rent paid to the -City will be set aside for -development and Programming -of •_ parks throughout the City • Approximately 7-acres on the south side of the island parallel to Government Cut has bben designated to remain as a public park Public Amenities and Cultural Arts 4 • Approximately 60% of the upland is accessible'tar ..pubtic.usa • Partnerships with. Fairchild Tropical Gardens and'Fiistorical.¢Assoclation of Soutti Florida • Festival terrace programmed,, or armual events, *2,2. `' Marina ':. • Accessible to the public during the day; _' • Over 48 slips and 7,000 linear feet of dockage _ • To be rated a"5-Gold Anchor" Marina. Facility... ,7'•' E'-Y {=� tiiii Fish Market i ` t ' • Open alr with retail and dieting . . _ • Negot atin ggrith_ :e d Ing fish market operators to relocate their.: operations into new lac ilittes` Hotels •..;• ;r t :... y top,. 4 '- > , 4 • 1.' rr _ ': r;. • Wave -Hotel -'Operated by_Conrad, ivision of Hilton :.' • : r= 175 moms ..1th-5eCtirime--have-1 sed�suitees 1.6 st&ie,s'.: . • -M ai MI i Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk MIAMI QUESTIONS 1 PROPUESTAS DE MIAMI BALLOT QU1:ST1ON •NO.1 AUTHORIZING 45-YEAR LEASE OF CITY -OWNED UPLAND/SUBMERGED LAND ON WATSON ISLAND Shall the City lease City -awned land consisting of 24.2 total upland and submerged acres on Watson Island 10 Flagstone Properties, LLC, for development of a rnega yacht marina, fish market, hotels with timeshare units, a maritime museum, public gardens, cultural Willies, restaurants, retell and support faciliSes, for 45 years with two 15-year renewals, subject to capital investment, subject to a minimum annual guaranteed rent of $2,000,000 and other conditions the City may require? CUESTIONAMIENTO ELECTORAL. NOM. 1 MEDJANTE EL CUAL. SE AUTORJZA EL ARRENDAMIFNTO x!E 77ERRAS ALTAS Y SUMERGIDAS PERTENECIENTES A LA CIUDAD DE MMLAMI EN L4 ISLA WATSON, POR UN PERIODO DE46 ARCS 4Debeni fa Ciudad arrendar tierr^a perteneolente a fa Ciudad que ronsfsfe en un Mal de 24.2 acres de Barnes alias y surnergidas en le Isla Watson a le compefla Flagstone Properfitm LLG por un perfodo de 45 atlas con dos periodos de renovacidn de 15 alias ceda uno, sujeto a una r?tversfdn de caplet, y sc jeto a un alquller enual mfnimo garantizedo de $2,000,000 y eras condictones que le Ciudad puede estfPular, a fin de que este coma/Ile Hove a cabo el fornento y deserrofio de dichas Herres con una mega manna, o fondeadero pars yatee, unei pescaderla, haleles con unidades de condomfnio a tiempo comparerdo, trn museo merft!tho, ja,dlnes ptibllcos, Instalaclones culturales, resteurantes, tlendas, a Instalaciones de apoyo? KESYON NO. 1 SOU BtLTEN DE V$T Kl OTORtZE LWE PWORRIYETE WATSON ISLAND K1 KONPOSE DE KAWO Tl= PLAT AIVSANM AK Tl~ Kl ANSA DLO POU YON PERYOD DE 45 AN Eske VII la gendwa iwe pwopriyete ki konpoze de you total de 24.2 kawo to plat ansanm ak to ki anba dlo sou pwopriyete depi Watson Island jjiska Flagstone. ak yon koporasyon ki gen responsabilite limits, pou deviope yon kokenn chenn Marina pou Yacht, mathe mason, ©fel ansanm ak yon serf de pwopriyete pou petals, yon mine rnaritim, laden piblik, eant kiltirel, restoran, rnagazen ak tout sant dapui yo pou yon peryod de 45 an ak de renouvolman de f5 an si envestisman kapital le pernot li e pouvi ke genyen yon twaye minimum garanti de $2,000,000 ansanm ak tout lot kondisyon vil la to mantle? YES I Si WI 1 272 NO t NO I NON 273 7 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk From: Campanile, Nick Sent: Wednesday, April 02, 2014 10:53 AM To: Sawyer, Thomas Subject: FW: 85/15 I may send some emaiis as I cruise thru the May -June 2013 period. From: Heiser, Gary Sent: Wednesday, May 15, 2013 6:01 PM To: Leeds, Stephanie; Campanile, Nick; Karter, Marjorie; Leftheris, James Subject: 85/15 This is a legal opinion Gary requested in July of last year regarding the above issue. fLO, Fiagstone-2 nd Armended.pdf — Bevin Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk CITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Johnny Martinez, City Manager Alice Bravo, Assistant City Manager FROM: Robin 3. Jackson, Assistant City Attomey w DATE: July 25, 2012 RE: Flagstone Island Gardens Project on Watson Island Proposed Second Amended and Restated Partial Modification of Restrictions to Deed No. 19447-G QUESTION PRESENTED: You have asked whether changes to the City's financial provisions from those in an earlier Amended and Restated State Partial Waiver would result in violations of the City's Charter, Referendum, or other applicable legal provisions related to the Flagstone Island Gardens Project (the "Flagstone Project") on Watson Island, if such changes are detrimental to the City. BRIEF FACTUAL BACKGROUND: As of September 15, 2011, the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida ("Board of Trustees"), the City of Miami ("City'), and Flagstone Island Gardens, LLC ("Flagstone") entered into an Amended and Restated Partial Modification of Restrictions to Deed No. 19447-F ("Amended and Restated State Partial Waiver") in connection with property on Watson Island (the "Property") deeded in 1949 to the City as owner by the Board of Trustees. - The Amended and Restated State Partial Waiver complies with the City's Charter provisions regarding the Request For Proposals ("RFP") for the lease of the Property, Flagstone's Response, and the required November 6, 2001 Referendum (the "Referendum"). Due to a technical default by Flagstone, but not by the City, the Board of Trustees terminated the Amended and Restated State Partial Waiver effective January 17, 2012, and Flagstone is in the processes of curing its default to the Board of Trustees. Because of its cure efforts, Flagstone is not in default to the City under its other agreements with the City. At the request of Flagstone, the Board of Trustees and the City are considering a proposed Second Amended and Restated Partial Modification of Restrictions to Deed No. 19447-G ("Second Amendment'). Rjj328256 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk ANSWER: Any changes which: (a) diminish the financial return to the City under, (b) cause a substantial increase in the City's commitment of funds regarding, or (c) result in any other material alteration of the City's award of the Project under Charter Section 29-C would cause a violation under City Charter Section 29-A(c) "Safeguards". Accordingly, any such changes would authorize the City Commission to terminate the award after a public hearing. Additionally, the termination provisions of City Charter Section 29-A(c) "Safeguards" would apply to any changes which would diminish the financial returns to the City set forth in the ballot education materials and the Referendum language requiring, with no public funds involved, returns to the City of (a) $1 million per year for construction rent, (b) $2 million per year as guaranteed minimum base rent when the Flagstone Project opens, (c) 1% of gross revenues from the Flagstone Project components, and (d) 2.5% from timeshare license sales. Accordingly, any changes which would diminish the financial returns to the City would violate the Referendum. In addition to required compliance with the Referendum, the Flagstone Project still (a) must comply with the City's RFP and Flagstone's original Proposal, and (b) must not diminish the financial returns to the City contemplated by the City's RFP and Flagstone's original Proposal. Flagstone has also previously certified to the City and agreed in the Flagstone Proposal to comply with the requirements of the City's RFP, as set forth in pages 14 through 24 thereof, which affirmatively state that the City shall not be responsible for any costs, fees, expenses, or commitment of funds for the Flagstone Project, including but not limited to the costs, fees, expenses of any and all regulatory approvals, governmental assessments, taxes, and other governmental impositions. cc: Tulie O. Bru, City Attorney Maria 5. Chiaro, Deputy City Attorney Attachments: Amended and Restated State Partial Waiver, dated September 15, 2011 City Charter Sections 29-A and Chapter 29-C Ballot Education Language and Referendum Language RFP pages 14 through 24 Flagstone's certification to the City from its Proposal Rjj328256 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk TOMAS P. REGALAbO MAYOR August8th, 2012 The Honorable Governor Rick Scott Office of the Governor The Capitol State of Florida 4.00 S. Monroe St. Tallahassee, Florida 32399-0001 Dear Governor, 3500 PAN AMERICAN DRIVE MIAMI. FLORIDA 33133 (305) a50-5300 FAX (305) 854-4001 Re: Flagstone Garden Development The personal card sent to me regarding our meeting at the American Embassy in Madrid, is truly appreciated. During the reception speech you mentioned how the City of Miami was progressing creating jobs, and partnering with the private sector industries. I appeal to your unnderstanding of how jobs are generated by the private sector industries, and not by the government agencies. This letter is to seek your support for the Flagstone Gardens Development. I have been advised that the State of Florida does not want to reconsider the deed restriction modification needed for the project to move forward. This lack of action by the State would effectively terminate this development. The Flagstone Development represents thousands of construction jobs for the City of Miami, and nearly 1000 permanent jobs once completed. Over 10 years ago, the City embarked on a process of establishing public -private -partnership for this site that for decades has been underutilized. This project is of such sig uflcance that it required voter approval. The City of Miami public referendum process resulted in a 64,.8496 voter approval of the Flagstone project. In "September 2010", our city commission once again approved advancement of the project setting a requisite deadline of September 2013, for the first phase of the project to start construction. Flagstone has invested over $50 million advancing the design, getting all necessary permit approvals, and they have advised that they are ready to start construction before the end of this year, nearly one year before the deadline noted above. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Page 2 of 2 Governor, allowing this project to move forward is beneficial for both the State and the City. As the largest metropolitan area in the State, improved economic activity in Miami helps fuel economic recovery state wide, through increased sales tax revenues. Our agreement with Flagstone provides an unambiguous deadiine of September 2013 for construction to commence. If the State elects to terminate the project then, it is the citizens of Miami and Florida that would be impacted by this lost opportunity to help improve our struggling economy. I ask you to please reconsider this matter as soon as possible. Thank you for your attention to this matter. Respectfully yours, "v::::7"7")14,494 Mayor Tomas P. Regalad Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk _ MArlo SAPU 4OFF COMMISSIONER September J 7, 2012 Governor Rick Scott 3900 Commonwealth Blvd. Mail Station Tallahassee, FL 32399 RE: Flagstone Island Gardens, Watson Island, Miami, Florida Dear Honorable Governor Scott: P.O. BOX 330708 MIAMI, FLORIDA 33233-0700 (305) 250-5323 FAX: (305j 579-3339 The City of Miami ("City") has been working diligently and in good faith with Flagstone Island Gardens ("Flagstone") over the past years in an effort to make this project a reality on Watson Island, which is one of the City's most pristine waterftont properties. At this time the City and Flagstone need the State's cooperation, as joint partners in this endeavor, in order to bring the Flagstone development to frudtion. As you are aware, the Flagstone project will create a great many jobs both locally and statewide. hi an effort to ensure the creation of local jobs in this very difficult job market that currently exists, the City incorporated a First Source Hiring Agreement into the Flagstone lease which therefore requiring that Miami -Dade County, Florida residents be :first source for 40% of jobs at the project. In addition to the creation of a great many jobs for the local unemployed and underemployed market, this deal has been amended to therefore improve the economical factor both to the City and to the State. Rents to the City and the State has been increased dramatically, i.e., a total of approximately 33,246,314 over period froze 2010 to 2028. Also, Flagstone has agreed to pay an additional 15% of Base Rent to State until such tinge as Flagstone completes the project, at which time the City will be responsible for the State payments. The City has also negotiated improved Percentage rents which have increased dramatically and more favorably to City and State. One percent (I%) of general revenues will come to the City, and the State will obtain a fifteen percent (15%) share of the amount. Additionally, the City will obtain two and a half percent (2.5%) of proceeds from first sale of the Fractional Residences and the State will receive its fifteen percent (15%) share. Although development of Fractional Residences was optional for Flagstone, the amended agreement now requires Flagstone must pay the City a penalty fee of $3,750,000 to offset possible loss of revenue if Flagstone elects not to develop Fractional Residences. State is entitled to its fifteen percent share of this amount. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Flagstone Island Gardens September 15, 2012 Page 2 At this time the deal is more realistic and feasible for Flagstone, and the City feels strongly that the project will actually be completed on this tremendous site which has been vacant for so many years. In particular, now the development may be financed in phases and constructed within more realistic deadlines (e.g., Marina Phase must be commenced by September I, 2013 and Retail/Parking Phase must be commenced by September 1, 2016). Flagstone has expressed its desire to commence construction of Marina in 2012 and thereafter to develop the remainder of the project all at one time as soon as possible. The hotel component needs to be commenced by September 1,-2018. AIthough Flagstone has two 5- year extension options, if exercised, Flagstone must pay annual option tees of $250,000 and $315,000 per year during first and second option periods, respectively. With this said, the project has now reached a critical juncture. Flagstone is tryingto close its transaction with a new Joint Venture partner. This partner is willing to invest $50,000,000 in capital which will be used to fund Marina construction and pre -sale and pre -lease activities. Of course with such a sizable investment at stake, the Joint Venture partner has expressed concerns about the "public/private" nature of -this transaction and the existence of two different government bodies involved. The amended and restated documents were completely revised and approved, however it did take over twenty (20) months of continuous negotiation between Flagstone, the City and the State to accomplish this endeavor. The City is also concerned that the capital markets, which are currently very bullish about development in Downtown and surrounding areas, will turn away from this historic, but difficult "public/private" project if changes are again required. With this said, the City wants to rnake it per•,fectly clear that Flagstone has the City's full support for this project. At this time, the City requests the support of the State in order to see this project through. The City envisions the Flagstone development as a catalyst both through the nature of its design, as well as the composition of its public/private partnership in order to create what the City envisions as a gateway entrance to South Florida. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk gag xlf Arard, J1xxr is FRANCIS SUAREZ COMMISSIONER, DI5SRICTY CHAIRMAN September 17, 2012 The Honorable Rick Scott Office of the Governor The Capitol 400 S. Monroe Street Tallahassee, Florida 32399-0001 Re: Flagstone Gardens Development Project Dear Governor Scott: Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk CITY HALL 3500 PAN AMERICAN DRIVE F LO R W A 33 733 306260-S420 FAX 305856S230 I am writing to seek your support for the Flagstone Gardens Development Project. As you know, this Project will transform Miami's Watson Island into a world -class destination, featuring retail shops, as many as fifteen restaurants, two hotels, and a mega -yacht marina. The Project was approved by City voters in a 2001 public referendum and will greatly benefit our State and our City. The Project will create thousands of jobs, generate tourism, and spur much -needed economic activity in our community. The developer, Flagstone Island Gardens, LLC, has obtained all necessary pennits and is poised to commence construction well in advance of the September 2013 deadline imposed by our City Commission. Before breaking ground, however, Flagstone must obtain a deed restriction modification from the State of Florida_ I respectfully urge you, Governor, to approve the Second Amended and Restated Partial Modification of Restrictions as soon as possible so that this important Project can move forward and bring immediate economic benefits to our community.. Should you or your staff require any additional information or wish to discuss this Project in greater detail, please do not hesitate to contact me directly at 305-992-3342. Thank you for your kind attention to this matter. Francis Suarez Chairman City of Miami Conunission Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk FLORIDA DEPARTMENT OF ENvIROPIl+NTAL PROTECTION MARJORY STONEPvIAN DOUGLAS BUILDING 3900 COMMONWEALTH BOULEVARD TALLAHASSEE,FLORIDA 32399 3000 September 30, 2013 Ms. Alice Bravo Assistant City Manager 444 S.W. 2nd Ave. Miami, FL 33130-1910 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk RICK SCO1T GOVERNOR 1-1ERSC1 iF.f. T. VINYARD JR. SECRETARY Dear Ms. Bravo: As you am aware, the Division of State Lands (DSL) and. the City of Miami staff had been working for several months on two separate proposed developments that would each require a partial modification to the deed restrictions. The Genting Group, parent company of Resorts World Miami (RWM), acquired the Miami Herald Building in 2011 with plans to redevelop the bay front site to include a hotel, condominium resort with commercial space and a 50-slip mega yacht marina DSL staff met with RWM and Spencer Crowley, Akerman Senterfitt, in March of this year to assist with a possible request for anodiflcation of deed restrictions for this project Likewise, DSL .staff met with Reggie L. Boutbillier, Greenberg Trawlg, P.A., in May of this year regarding plans of The Related Group (TRG) to develop the Wasson Island property. As discussed, the City will need to provide the following actions in order to move forward with these two projects: Request from the Board of Trustees ofthe Internal Improvement Trust Fund a Partial Modification of the 1949 deed municipal use restriction to allow the developments_ Moreover, the City will need to request modification of the mur».cipal use restriction from the 1919 Legislative Act_ A formal request from the City has not been made- at Ibis time. Provide title work for both properties to verify ownership. The title work is to include applicability of the 1919 Legislative Act to both development sites. Provide status of the Watson Island project and TRG's involvement. We have yet to receive any of the above items from you. For project management purposes, we have redirected our efforts elsewhere. If you have any questions, please contact me at 850-245-2642. Sincere Nick Campanile, PSM Program Manager Division of State Lands Cc: Governor Rick Scott Attorney General Pam Bondi Chief Financial Officer Jeff Atwater Agriculture and Consumer Affairs Commissioner Adam Putnam www. dep.state f. xs G. Pierce Wood (DJJ-Managed Property} - Surplus Decatur County, Georgia - Surplus LAKE OSBORNE/MASSON -filled frmly SSL purchase Nick, Jim Nick, Jim Clay, Nick YES YES YES Sawyer Sawyer Sawyer Surplus of 500 acres of non -conservation land with approx. 80 structures. Broker has been selected and contract PO In place 12/12. WIII get contract consultant (CBRE) to do a BOV. Preparing appraisal bid package now, Field site visit performed 12/16. Report coming soon. Will submit weekly (for now) update to Upper Mgmnt; obtain bi-weekly hours report frorn CBRE, per Brokers Agreement. Nick made site visit with Broker on 10-16-13, Contacted Waste Management with DEP to find out status of any possible site contamination. They are currently checking with South Dist. Etc, Chris Pellegrino is my contact on this. Forwarded copy of Dept. of State letter to Joe Duncan to Nick regarding historic preservation info request. Also, provided copy or. ftp iite of County Assessment in CBRE staff per your request on 12-17.13. Surplus of unimproved acreage - approximately 1100 acres, Consultant to be selected and placed under contract. 12/17 - This site is currently on hold by Upper Mgmni Owners wish to purchase filled, formerly SSL. Not all of the strip they wish to purchase is filled yet will only entertain filled portion which is reclamed lake bottom oflake Osborne. Applicant was provided a summary of the appraisal bids on 12/18/13. Waiting on check. 2/17/2013 12/18/2013 YES NO YES 11/15/2013 11/15/2013 11/1/2013 ON HOLD 12/17 SUPPORT TO BUREAUS ON EXCHANGES, CROSSTRAINING Jim N/A N/A Support provided to the Bureau of Real Estate Services to assist station land exchanges. Atraining was held 11/12. fim providing ongoing assistance to Judy end staff. ongoing NO 10/22/2013 minimal WARDS CREEK Nick, Mar)orle YES Russell Noticing period is over. Continuing to answer public Inquiries on project. Met w/ FFS on 10/8. Received another PR request 11/27. Hold. 11/26/2013 YES 2/21/2013 HOLD MIAMI HERALD MARINA/WORLD RRTS MIAMI (WRM) Jim, Clay YES ...; ... Russell ...,. .w:xr Still waiting on City to respond on many items, Including application, how they are structuring deal (lease, exchange). Letter sent 10/2/2013. Late 10/11 received a call from Alice Bravo giving update - look for omeihin the.-_i3ni�bii IEF14•(wahinG.on.chyLAllce 10/11/2013 , ....-,,..., . , YES (Old) .:::-.: -,,,,,:.-. 1/31/2013 _-,,,,,ram ..: „--- „ "^" 4/30/2013 On hold said new atty will get Into 1919 Leg Act ^ - -- __ _„ •-_l 10/11/2013 ._,:,_ RELATED GROUP/WATSON ISLAND Jim, Clay YES Russell TRG pulled out last summer. Haven't heard a word from Reggie since. Letter sent to city 10/2/2013. Late 10/11 received a call from Alice Bravo giving update Flagstone Is looking Into investment options. No timeline set. Current 9 month extension goes to 6/1/2014. Essentially, waiting on city. YES (Old) Rro ert bid-2,bids:reaeived..t3n. P Y' hoid,and•unable to ..• open per injunction while USF conducts research. Injunction extended until 1/9/14. Made site visit on 10/1. 10/31 • Jay Scott has proposed plan to discuss. ..':. ..:'. '' ° •• Pre -Team . ..� ®� - •• • • ••• • • � 10/1/2013 •� •- NO Jim TBD .r .--••�^'""''- DOZIER $cj10_O•,4; cf31D' NOOR INVESTMENT CORP/DCF Marjorie TBD Russell Discussed file status with OGC. DCF indicated that there would be an upcoming meeting to discuss Noor's sublease with DCF. 11/19 - DCF emailed re; permit request went unsigned, not that it could be. Awaiting direction, input from DCF. 11/19/2013 YES 1/28/2018 KEY t;;1f;+:'yy ; Highest priority, requires board action, complex issue, nearest completion N 0 —h O rD 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk From: Bravo, Alice Sent: Friday, October 11, 2013 5:16 PM To: Jackson, Robin Jones Mendez, Victoria; Torre, Henry; Bustamante, Aldo Subject: FDEP submerged lands Attachments: MX-M363N_20131011_120235.pdf All -1 just spoke to Mr. Nick Campanile regarding the attached correspondence. i advised him that we would_soon be able to discuss the title issues concerning the submerged lands. Regarding Genting, I advised him we were working through appraisals and we would not likely be in a position to have discussions with the state until early January. With regard to Flagstone, 1 informed him that we are optimistic Flagstone will be able to solidify a new investment partner before the June 1, 2014 expiration of the extension granted by the City Commission in June 2013. He advised that Mr. Al Dougherty had resigned from the agency and that Katy Fenton had taken his place. She worked in the lands division in the past and is very familiar with their activities. Thanks, Alice N. Bravo, P_E. Assistant City Manager - Chief of Infrastructure City of Miami Miami Riverside Center 444 S.W. 2nd Avenue - 10th Floor Miami, FL 33130 Office: 305-416-1091 Fax: 305-416-1019 Email: abravo ar?miamigov.com From: Mendez, Yordanka Sent: Friday, October 11, 2013 12:02 PM To: Bravo, Alice Subject: Yordanka Mendez Administrative Assistant City Manager's Office City of Miami (305) 416-1091 ymendez(a miamigov.com i Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION RICK SCOi-T GOVERNOR MARIORY STONEMAN DOU(xLAS BUILDING 3900 COMMONWEALTH BOULEVARD HERSC1HEL T. VINYARD JR,. TALLAHASSEE, FLORIDA 32399-3000 SECRETARY September 30, 2013 Ms. Alice Bravo Assistant City Manager 444 S.W. 2nd Ave. Miami, FL 33130-1910 Dear Ms. Bravo: As you are aware, the Division of State Lands (DSL) and the City of Miami staff had been working for several months on two separate proposed developments that would each require a partial modification to the deed restrictions. The Gelling Group, parent company of Resorts World Miami (RWM), acquired the Miami Herald Building in 2011 with plans to redevelop the bay front site to include a hotel, condominium resort with commercial space and a 50-slip mega yacht marina. DSL staff met with RWM and Spencer Crowley, Akerman Senterfitt, in March of this year to assist with a possible request for modification of deed restrictions for this project_ Likewise, DSL. staff inet with Reggie L. Bouthillier, Greenberg Traurig, P.A., in May of this year regarding plans of The Related Group (TRG) to develop the Watson Island property. As discussed, the City will need to provide thefollowing actions in order to move forward with these two projects: - Request from the Board of Trustees of the Internal Improvement Trust Fuud a Partial Modification of the 1949 deed municipal use irAriction to allow the developments. Moreover, the City will need to request modification of the municipal use restriction from the 1919 Legislative Act. A formal request from the City has not been made at this time. - Provide title work for both properties to verify ownership. The title work is to include applicability of the 1919 Legislative Act to both development sites. Provide status of the Watson Island project and TRG's involvement. We have yet to receive any of the above items from you. For project management purposes, we have redirected our efforts elsewhere. If you have any questions, please contact me at 850-245-2642. Sincere Nick Campanile, PSM Program Manager Division of State Lands Cc: Governor Rick Scott Attorney General Pam Bondi Chief Financial Officer Jeff Atwater Agriculture and Consumer Affairs Commissioner Adam Putnam www_dep. snrle. j1. us Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Front Bravo, Alice Sent Monday, January 27, 2014 3:49 PM To: Billy Rubin Subject Fwd: Letter from FDEP regarding submerged lands Attachments: irnage001 jpg; ATT00001.htm; MX-M363N_20131011 120235.pdf; ATf00002.htm Sent from my iPhone Begin forwarded message: From: "Bravo, Alice" <abravopmiamiROV.COm> Date: January 27, 2014, 3:43:08 PM EST To: "Bravo, Alice" <abravo(almiamigov.com> Subject: FW; Letter from FDEP regarding submerged lands From: Bravo, Alice Sent Friday, October 11, 2013 3:10 PM To: Mendez, Victoria Subject: Letter from FDEP regarding submerged lands 1 Madame City Attorney — please see the attached letter in reference to our submerged lands issue. Let me know when we can discuss_ Thanks, Alice N. Bravo, P.E. Assistant City Manager - Chief of Infrastructure City of Miami Miami Riverside Center 444 S.W. 2nd Avenue - 10th Floor Miami; FL33130 Office: 305-416-1091 Fax: 305-416-1019 Email: abravot9 miamieov.com From: Mendez, Yordanka Sent: Friday, October 11, 2013 12:02 PM To: Bravo, Alice Subject: 1 Yordanka Mendez Administrative Assistant City Manager's Office City of Miami (305) 416-1091 ymendez@miazriigov_corn 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Sfi- September 30, 2013 Ms. Alice Bravo Assistant City Manager' 444 S.W.2nd Ave. Miami, FL 33130-1910 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk FLORIDA DEPARTMEIVT OF ENVIRONMENTAL PROTECTION MARIORY STON MAN DOUGLAS BUILDING 3900 COMMONWEALTH BOULEVARD ALRSCHF.L T. VINYARD 1R, TALLA13ASSEE, FLORIDA 32399-3000 S£CIEYARY TUCK SCOTT GOVERNOR Dear Ms. Bravo: As you are aware, the Division of Smte Lands (DSL) and the City of Miami staff had been working for several months on two separate proposed developments that would each require a partial modification to the deed restrictions The Genting Group, parent company of Resorts World Miami (RWM), acquired the Miami Herald Building in 2011with plans to redevelop the bay front site to include a hotel, eondovainium resort with commercial space and a 50-slip mega yacht marina. DSL staff met with RWM and Spencer Crowley, Alterman Senterfitt, in March of this year to assist with a possible request for modification of deed restrictions for this project. Likewise, DS`L-staff met with Reggie L. Bouthi1 ier, Greenberg Traurig, P.A., in May of this year regarding plans of The Related Group (TRG) to develop the Watson Island property. As discussed, the City will need to provide the following actions in order to move forward with these two projects: Request from the Board of Trustees of the Internal improvement Trust Fund a Partial Modification oldie 1949 deeclmunicipal use restriction to allow the developments. Moreover, the City wilt need to request modification of the municipal use restriction from the 1919 Legislative Act. A formal request from the City bus not been madeatthis time. - Provide title work for both properties to verify ownership. The title work is to include applicability of the 1919 Legislative Act to both development sites. - Provide status of the Watson Island project and TRG's involvement. We have yet to receive any of the above items from you. For project management purposes, we have redirected our efforts elsewhere. If you have any questions, please contact rac at 850-245-2642, Sincere Nick Campanile„ PSM Program Manager Division of State Lands Cc: Governor Rick Scott Attorney General Pate Bomb Chief FinanciatOfficer Jeff Atwater Agriculture and Consumer Affairs Commissioner Adam Putnam w w.dep.srateff.us Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04 Z8 201&, City Clerk CITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Alicia Bravo, Assistant City Manager FROM: Maria J. Chiaro, Deputy City Attorney DATE: June 25, 2013 RE: Informal Opinion — Municipal Purpose / Public Purpose You have asked: What are (if any) the differences between the terms "municipal purpose" and "public purpose"? What is the scope of uses that are allowed under the term "municipal purpose"? [and] Is the development of a destination resort, a use within a "municipal purpose"? Case law regarding both municipal purpose and public purpose all revolve around either bond issuance or tax exemption. Focusing on the difference between municipal and public purpose, Florida courts have stated that there is no distinction between "municipal purpose" and "public purpose". The Florida Supreme Court opined in a tax exemption/assessment setting that while there is a distinction between the phrases, the "distinction is without a difference."l The terms "public purpose" and "municipal purpose" are found in the Florida Constitution, Article VII and Article VIII. Art. VII of the Florida Constitution focuses on Finance and Tax, while Art. VIII discusses Local Governments. The Florida Supreme Court drew a distinction between the language of Art. VII "municipal and public purposes" and that of the language of "municipal purposes" in Art. VIII.2 Art. VIII refers to the powers of municipalities, and in this context, the term "municipal purposes" has been given a broad definition.3 Art. VIII refers to powers and activities that municipalities are allowed to undertake, while Art. VII as construed by the Florida Supreme Court must be "essential to the health, morals, safety, and general welfare of the people[.]"4 Therefore, municipal purpose in the context of Art. VIII has great latitude, while municipal and public purposes of Art. VII are finite and linked to those essential activities. The scope of "municipal purpose" would describe what activities fall under and are allowed when referring to municipal purpose. "Municipal purpose" as defined by Florida Statute "means any 1 Daytona Beach Racing and Recreational Facilities Dist. v. Paul, 179 So. 2d 349, 355 (Fla. 1965); see also McQuillin, Eugene, The Law of Municipal Corporations § 44.70 (3d ed. 2003) 2 Art. VII, § 3 (a), Fla. Const.; Art. VIII, § 2 (b), Fla. Const.; see Florida Dept. of Revenue v. City of Gainesville,918 So. 2d 250 (Fla. 2005). 3 Gainesville.918 So. 2d 250, 262 (Municipalities "may exercise any power for municipal purposes except as otherwise provided by law .... [w)e recognized the broad sweep of municipalities' inherent power under article VIII, section 2(b)[.1"). a Gainesville at 264. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk activity or power which may be exercised by the state or its political subdivisions."S Art. VIII of the Florida Constitution states that a municipality "may exercise any power for municipal purpose except as otherwise provided by law."6 Florida courts have described what does not constitute a "municipal purpose." For example, Florida appellate courts have required exercises of "valid municipal purposes," which relate to the "health, morals, safety, protection or welfare[,]" of the municipality and its residents.? Also, "borrowing money for the primary purpose of reinvestment is not a valid municipal purpose."8 However, the Florida Supreme Court in Gainesville, expressed that "municipal purpose" had a broad definition. Furthermore, courts consistently give general deference to the governing body of a municipality on whether a particular activity serves a municipal purpose.9 Importantly, when a municipality exercises its power, a two tiered question is presented. The first question is, "was the action taken for a municipal purpose? Second, if so, was that action expressly prohibited by the constitution, general or special law, or county charter?"10 When looking at the totality of all decisions by Florida courts regarding municipal purpose, the fact that the definition is broad and that few restrictions are in place, would mean the final question of whether a destination resort falls within a municipal purpose seems to be clear. If, the municipal purpose of developing a destination resort on Watson Island is not prohibited by specific language in the Florida Constitution, Florida Statutes, or the Charter and the municipal purpose is connected to the welfare and morals of the City —than the development is a valid municipal purpose. Therefore, the development of Watson Island should fall within the exercise of power as a "municipal purpose". 5 §166.021 (2) , Fla. Stat. (2011). 6 Art. VIII, § 2 (b), Fla. Const. (emphasis added). 7 Basic Energy Corp. v. Hamilton County, 652 So. 2d 1237, 1239 (Fla. lst DCA 1995). 8 State v. City of Orlando, 576 So. 2d 1315, 1317 (Fla. 1991). 9 See City of Shreveport v. Shreve Town Corp., 314 F.3d 229, 235 (5th Cir. 2002) (City expropriated land in order to develop a convention center and hotel, expropriation had a valid public purpose of economic development). io City of Winter Park v. Montesi, 448 So. 2d 1242, 1244 (Fla. 5th DCA 1984); see City of Boca Raton v. Gidman, 440 So. 2d 1277, 1280 (FIa. 1983). Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Sent: Thursday, January 23, 2014 10:58 AM To: Jackson, Robin Jones; Mendez, Victoria; Min, Bamaby; Suarez -Rivas, Rafael; Soliman, Jihan M. Subject RE: Research on meaning of "public purpose" and "municpal purpose" Attachments: Informal Opinion_Muni Purpose _ Public Purpose _ Flagstone (3) (2).pdf Good Morning Everyone, See attached requested informal opinion. Tracy P. Rawlins City of Miami office of the City Attorney Telephone: 305-416-1839 Facsimile: 305-416-1801 tprawlins(&miamiaov. com Disclaimer: This e-mail is intended only for the individuals) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney - client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney -client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message. Nothing in this e-mail message shall, in and of itself, create an attorney -client relationship with the sender. 411 Please consider the environment before printing this e-mail. From: Jackson, Robin Jones Sent: Thursday, January 23, 2014 10:55 AM To: Rawlins, Tracy; Mendez, Victoria; Min, Bamaby; Suarez -Rivas, Rafael; Soliman, Jihan M. Subject: Research on meaning of "public purpose" and "municpal purpose" Note to All: Maria Chiaro researched and wrote a memorandum this summer regarding the meaning of "public purpose" which appears to be the same as the meaning of "municipal purpose" which generally both mean that public purpose/municipal purpose are whatever the local government declares them to be in the context of the particular legislation (recitals, "whereas clauses", findings). Tracy is trying to locate that memorandum by MJC now to forward to you in the context of the Mayor's Poverty Initiatives; my recollection on this Public Policy Program which began before my time at the City is that this was created to give more flexibility to the Mayor in the annual budget to fund organizations in the community that perform basic poverty relieving measures because originally some of those organizations were state not -for -profits, but did not have Federal IRS Code Section 501(3)(c) status as was required earlier to receive certain Federal funding. Meaning, the local organizations could not meet all Federal criteria, but were serving the community. My further recollection is that historically the annual funding amount in the Budget as requested by the Mayor comes from General Funds that are not restricted, rather than CDBG or other Federal funds that have criteria that the local organizations could not meet. 1 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Hope these historical recollections are helpful to you. Maria's research should be helpful as well. Thanks All for your continued positive thoughtful assistance. Robin Jones Jackson, Assistant City Attorney City of Miami Office of the City Attorney Telephone: 305-416-1853 Facsimile: 305-416-1801 rijackson@miamigov_com Assistant: Tania [Wickens 305-416-1820 Disclaimer: This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney - client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney -client privilege. if the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message. Nothing in this e-mail message shall, in and of itself, create an attorney -client relationship with the sender. Please consider the environment before printing this e-mail. 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk rag'G 1 Vl 1 From: Bustamante, Aldo Sent: Wednesday, February 19, 2014 11:15 AM To: Bravo, Alice Cc: Torre,. Henry Subject: Submerged Lands Talking Points Attachments: Submerged Lands Title History-tssues.docx Alice, Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Attached please find a bullet point history of the submerged land issues. Not sure if you want to have Legal look at this too just to play it safe. Let me know if you want to change anything. Thanks! Respectfully Submitted, 1 L7�iGcgCfma to Assistant Director City of Miami Public Facilities '1/11 SW 2nd Avenue, 3rd Floor Miami, Florida 33130 Phone: 305.416.1436 Facsimile: 305.400.5061 E-mail: abustamante@miamigov.com file:///U:/Herbits2013/Aldo%20Feb.%2019,%202014%20Emai1%20attaching%20Submerge... 4/2/2016 Submerged Lands Title History/Issues Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk • The submerged lands adjacent to the City of Miami were deeded by the State to the City in the early 1900's through the 1950's. • Some of those submerged lands were subsequently filled -in (Watson Island, Dodge Island/Port of Miami, etc.) and some deeds contained "public use only" restrictions. • Over the years, particularly in the 1980's, both the City and State staff had difficulty tracking the respective deeds and their implications. As an example, the State erroneously entered into deeds with private marina developers on submerged land parcels for which title is held by the City. • The submerged lands where Watson Island sits today were deeded by the Florida Legislature in the Legislative Act of 1919 for "municipal purposes". • A subsequent deed (Deed 19947) was issued that overlapped with the lands of the 1919 Act that contained "public use only" restrictions; however, those restrictions (that are waived by the Board of Trustees of the Internal Improvement Trust Fund (TIITF) in exchange for a percentage of revenues to be paid to the State) should not apply to lands originally deeded in 1919. • The Flagstone Project is a public private partnership with the City of Miami that will provide among other elements, a marina, a baywaik, a park and many other public features that enhance the public's enjoyment of the waterfront which clearly constitute "municipal purposes". • Issue: Is the Legislative Act of 1919 (Chapter 8305 No. 523) still enforceable today for those submerged lands legally described? o Answer: Yes_ The Legislative Act of 1919 conveyed from the State to the City of Miami all the rights, title and interest to the submerged lands legally described in the document for "municipal purposes". The submerged lands included waterfront and riparian rights described in the document. There is no conveyance of higher dignity than a legislative grant. This was the means by which the City in 1919 acquired the submerged land that was later filled with dredge material and is now known as Watson Island. The City has held title since the Act was approved by the Governor on June 2, 1919. There are no documents by which the City ever reconveyed those lands described in the Legislative Act back to the State in order for the TIITF to "re -deed" those lands back to the City with additional restrictions. • Issue: Did the Quit Claim Deed described in Resolution No. 21088 dated December 1, 1948 reverse the Legislative Act of 1919 and reconvey the submerged lands back to the State? o Answer: No, not regarding Watson Island. The City only reconveyed those lands acquired by the 1919 Legislative Act involved in the Burlingame Island litigation (now known as Brickell Key). This litigation had nothing to do with those submerged lands which later became Watson Island. This conveyance only excluded 85-acres for use of Burlingame Island and no other lands previously granted to the City. The lands described in the Resolution to be quit claimed were contingent on the following: • That Burlingame island would not exceed 85 acres when filled and completed; and • The TIITF shall deliver to the City a deed to certain other bay bottom lands necessary for the development of Dinner Key. • Issue: Did Resolution 21323 dated April 6, 1949 accepting Deed 19447 rescind in any way the 1919 Legislative Act and the City's property rights? o Answer: No, not regarding Watson Island. This Resolution authorized the City Manager to execute a Quit Claim Deed to the TIITF quitclaiming the City's interest in and to only those 85- Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submerged Lands Title History/Issues • The submerged lands adjacent to the City of Miami were deeded by the State to the City in the early 1900's through the 1950's. • Some of those submerged lands were filled in (Watson island, Dodge Island/Port of Miami, etc) and some deeds contained "public use" only restrictions. • t7+c r vests s�arbs alaz lrt fF�g1 st — -an sfstaglia:-€i cultu ackin .the r eetive deedsand <. _p xiPlicatioris ��a�xamp#e ttre Stj anegrislsrtergd rtsoeeds wrt. )arty rn ri ,de le_o r f: ? er -C 1i sti f `?a % airkO field ytie City, • The submerged lands where Watson Island sits were deeded by the Florida Legislature in the Legislative Act of 1919 for Municipal Purposes. • is equenJt deeds {t ed1994, a ,--wereasie zFt cnr- licepittfie40 o -tt► c6o,;rh�11se€i?tiorrt#ra)�r✓d�vet! _ r ` CZu! not apply The Flagstone Project is a public private partnership with the City of Miami that will provide a marina, baywaik, a park and many other public features. • Issue: Is the Legislative Act of 1919 (Chapter 8305 No. 523) still enforceable today for those submerged lands legally described. o Answer: This was a Legislative Act from the State granting to the City of Miami all the rights, title and interest to the submerged lands legally described in the document for municipal purposes only. The submerged lands included waterfront and riparian rights described in the document. There is no conveyance of higher dignity than a legislative grant. This was the means by which the City acquired the land now known as Watson Island in 1919. The City has held title since the Act was approved by the Governor on June 2,1919. There are no documents where the City ever released those lands described in the Legislative Act back to the State in order for the State to "re -deed" those lands back to the City with stricter restrictions. • Issue: Did the Quit Claim Deed described in Resolution No. 21088 reverse the Legislative Act of 1919. o Answer: The City only released back to the State those lands acquired by the 1919 Legislative Act involved in the Burlingame Island litigation. This litigation had nothing to do with those submerged lands surrounding Watson Island. This conveyance only excluded 85-acres for use of Burlingame Island and no other lands previously granted to the City. The lands described in the Resolution to be quit claimed were contingent on the following: • That Burlingame Island would not exceed 85 acres when filled and completed; and • The Trustees shall deliver to the City a deed to certain other bay bottom lands necessary for the development of Dinner Key. • Issue: Did Resolution 21323 accepting Deeds 19447 and 19448 rescind in any way the 1919 Legislative Act. o Answer: This resolution authorized the City Manager to execute a Quit Claim Deed to the Trustees quitclaiming the City's interest in and to only those 85-acres of lands comprising Burlingame Island. Deed 19447 conveys to the City from the Trustees certain submerged lands, some of which had originally been included in the 1919 Legislative Act, as well as additional lands not having previously been conveyed to the City, and excludes only those submerged lands conveyed for Burlingame Island. However, those lands originally described in the 1919 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submerged Lands Title History/Issues Legislative Act had not been released from the City to the State, therefore the State did not have Title to "re -deed" certain lands described in Deed 19447 and imposing stricter conditions. • Issue: Status of Title vesting in the Submerged Lands described in the Legislative Act o Answer: There is no conveyance of higher dignity than a legislative grant. This was the means by which the City acquired the land now known as Watson Island in 1919. The City has held title since the Act was approved on June 2, 1919. There are no documents to show the City ever deeded those lands described in the Legislative Act back to the State except for the 85-acres described as part of the Burlingame Island litigation. The State could only deed those lands described in the 19447 Deed the State had legal title to and nothing more, therefore those lands described in the 1919 Legislative Act are excluded since the State did not hold title to those lands. Therefore Deed 19447 was the result of a mistake in fact and/or in law, because the City unknowingly having good title to certain submerged lands, resulted in conditions to an inferior Deed to what had originally been bargained for. Submerged Lands Title History/Issues Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk • Issue: Is the Legislative Act of 1919 (Chapter 8305 No. 523) still enforceable today for those submerged lands legally described. o Answer: This was a Legislative Act from the State granting to the City of Miami all the rights, title and interest to the submerged lands legally described in the document for municipal purposes only. The submerged lands included waterfront and riparian rights described in the document. There is no conveyance of higher dignity than a legislative grant. This was the means by which the City acquired the land now known as Watson Island in 1919. The City has held title since the Act was approved by the Governor on June 2, 1919. There are no documents where the City ever released those lands described in the Legislative Act back to the State in order for the State to "re -deed" those lands back to the City with stricter restrictions. • Issue: Did the Quit Claim Deed described in Resolution No. 21088 reverse the Legislative Act of 1919. o Answer: The City only released back to the State those lands acquired by the 1919 Legislative Act involved in the Burlingame Island litigation. This litigation had nothing to do with those submerged lands surrounding Watson Island. This conveyance only excluded 85-acres for use of Burlingame Island and no other lands previously granted to the City. The lands described in the Resolution to be quit claimed were contingent on the following: • That Burlingame Island would not exceed 85 acres when filled and completed; and • The Trustees shall deliver to the City a deed to certain other bay bottom lands necessary for the development of Dinner Key. • Issue: Did Resolution 21323 accepting Deeds 19447 and 19448 rescind in any way the 1919 Legislative Act. o Answer: This resolution authorized the City Manager to execute a Quit Claim Deed to the Trustees quitclaiming the City's interest in and to only those 85-acres of lands comprising Burlingame Island. Deed 19447 conveys to the City from the Trustees certain submerged lands, some of which had originally been included in the 1919 Legislative Act, as well as additional lands not having previously been conveyed to the City, and excludes only those submerged lands conveyed for Burlingame Island. However, those lands originally described in the 1919 Legislative Act had not been released from the City to the State, therefore the State did not have Title to "re -deed" certain lands described in Deed 19447 and imposing stricter conditions. • Issue: Status of Title vesting in the Submerged Lands described in the Legislative Act. o Answer: There is no conveyance of higher dignity than a legislative grant. This was the means by which the City acquired the land now known as Watson Island in 1919. The City has held title since the Act was approved on June 2, 1919. There are no documents to show the City ever deeded those lands described in the Legislative Act back to the State except for the 85-acres described as part of the Burlingame Island litigation. The State could only deed those lands described in the 19447 Deed the State had legal title to and nothing more, therefore those lands described in the 1919 Legislative Act are excluded since the State did not hold title to those lands. Therefore Deed 19447 was the result of a mistake in fact and/or in law, because the City unknowingly having good title to certain submerged lands, resulted in conditions to an inferior Deed to what had originally been bargained for. Submerged Lands Title History/Issues Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk acres of lands comprising Burlingame Island. Deed 19447 conveys to the City from the TIITF certain submerged lands, some of which had originally been included in the 1919 Legislative Act, as well as additional lands not having previously been conveyed to the City, and excludes only those submerged lands conveyed for Burlingame Island. However, those lands originally . described in the 1919 Legislative Act had not ever been reconveyed from the City back to the State; therefore, the TIITF did not have title to "re -deed" certain lands described in Deed 19447 and the TIITF did not have the authority to require stricter conditions on land it did not own. • Issue: Status of title vesting in the Submerged Lands described in the 1919 Legislative Act. o Answer: There is no conveyance of higher dignity than a legislative grant. This was the means by which the City acquired in 1919 the submerged lands now known as Watson Island. The City has held title since the Act was approved on June 2,1919. There are no documents to show the City ever deeded those lands described in the Legislative Act back to the State except for the 85- acres described as part of the Burlingame Island litigation. The TIITF could only deed those lands described in the 19447 Deed that the TIITF had legal title to and nothing more; therefore, those lands described in the 1919 Legislative Act are excluded since the TIITF did not hold title to those lands. Therefore, Deed 19447 was the result of a mistake in fact and/or in law (because the City unknowingly had and continues to have good title to certain submerged lands) which resulted in conditions being placed on an inferior Deed which was outside the legal chain of title. Submitted into the public record for item(s) CA.7_ on 04 28 2016, City Clerk Submitted into the public record for item(s) CA.7 on 04 28 2016 City Clerk From: Campanile, Nick Sent: Tuesday, February 18, 2014 6:47 PM To: Campanile, Nick Subject: Watson Island - notes Notes from today's meeting with Alice bravo and Vanessa Acosta of the City of Miami: Robin Jackson of the City reviewed the Supreme Court decision and came to a conclusion that the 1949 deed (T-19447) doesn't apply and all falls back on the 1919 legislative Act. The Supreme Court ruling is from 1956 and involved TUF and E.N. Claughton (86 So. 2d 775). Aldo is still involved. He works for Henry Torre Past: TRG had proposed 200k additional SF beyond approved DRI. Miami Beach threatened to sue over traffic concerns. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Date Date Committed Completed Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk From: Bustamante, Aldo Sent: Wednesday, January 15, 2014 5:03 PM To: Dorsainvit, Sandy; Bogner, Stephen; Maichel, Hans; Burns, Mark; Hernandez, Yvonne Cc: Torre, Henry Subject: Project Update Attachments: Public Facilities - Assignments Master Listxlsx Please go through the attached project lists and please update those projects that pertain to your division and highlight the cells where those changes were made in yellow. Some of the items have not been updated in a couple of months and we need to know where they are and know that the project is moving forward therefore please review carefully. Please complete by noon on Friday 1/18/2014. Thanks for your cooperation. Respectfully Submitted, �ZC�I& UG daora4ti`e Assistant Director City of Miami Public Facilities 41l SW 2nd Avenue, 3rd Floor Miami, Florida 33130 Phone: 305.416.1436 Facsimile: 305.400.5061 E-mail: abustamante(miamieov.com 1 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk From: Brian May [mailto:bmay3@me.com] Sent: Thursday, February 06, 2014 3:35 PM To: Mendez, Victoria Subject: 1919 Deed Legal Opinion Victoria, I know you have had some difficulty finding a firm, but you may want to look into Daniella DeVito at Gunster. She knows the Flagstone Project from previously working at Shutts and has a very good sense of the title issues. Just a thought. Brian May Floridian Partners and Mercury.Florida 0: 305.461.4260 C: 305.796-3011 bmay3Ca�me.com www.flapartners.com Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk From: Brian May <bmay3@me.com> Sent: Monday, December 09, 2013 10:12 AM To: Bravo, Alice; Torre, Henry; Bustamante, Aldo Cc: Nathalie Goulet; Mehmet Bayraktar; Jackson, Robin Jones; Mireya Carballosa Subject: Flagstone Good morning all, Flagstone would like to schedule a meeting with all of us to discuss the critical path forward in order to create the conditions necessary for break ground on the marina duringthe fsrst half of neXr�_ Last week we learned that Holland and Knight, as outside counsel, claimed a conflict with regard to providing the city with an opinion relating to the 1919 Deed. We are concerned that with the holidays upon us we have not made a lot of progress in terms of securing the deed waiver from the state or strengthening the City's posit' that negotiation. With financial partners ready to sign onto the project, we need to agree on a strategy we can execute early in 14' to ensure that the Waiver does not inhibit flagstone from signing their financial ners and breaking ground by the required deadline_ Please let us know when we can have such a meeting - perhaps next Tuesday? Thanks, Brian May Floridian Partners 0: 305.461.4260 C: 305.796.3011 flapartners.com i Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk From: Campanile, Nick Sent Wednesday, February 19, 2014 7:18 AM To: McCall, Cheryl Subject RE: Miami info Maybe not. But maybe presumed so. Let's discuss... Sent from my Windows Phone From: McCall, Cheryl Sent: 2/18/2014 8:16 PM To: Campanile, Nick Subject: Re: Miami info Evening Nick It appeared the City's position seem to extend to even current private/public paternerships in existence on Watson_ I'm not sure if Gary understood that as well. Sent from my iPad On Feb 18, 2014, at 7:31 PM, "Campanile, Nick"<Nick.Campanile@dep.state.fl.us> wrote: Thank you Gary. Sent from my Windows Phone From: Heiser, Gary Sent: 2/18/2014 7:23 PM To: Campanile, Nick; Leftheris, James; Courson, Clay M.; McCall, Cheryl; Sawyer, Thomas; Woolam, Scott; Thompson, Vicki Cc: Clark, David A.; Karter, Marjorie; Byrd, Connie; Reardon, Bevin Subject: RE: Miami info since the beginning of the Watson Island project, the Department's and Board of Trustees' position has been consistent...the private development is not a municipal purpose. evidence of that is the Board of Trustees' approval of a modification to the deed restriction to allow the Flagstone development on June 24, 2004 and again on April 5, 2011. I recall the city trying to make that argument to Bob Ballard, et al., when this project was first presented to the Department and we did not agree. also, my recollection is that this was still our position when the Related Group was involved last year. to my knowledge, the Department's/Board of Trustees' position regarding this matter has not changed. glh From: Campanile, Nick Sent: Tuesday, February 18, 2014 6:43 PM To: Heiser, Gary; Leftheris, James; Courson, Clay M.; McCall, Cheryl; Sawyer, Thomas; Woolam, Scott; Thompson, Vicki 1 Cc: Clark, David A.; Karter, Marjorie; Byrd, Connie; Reardon, Bevin Subject: RE: Miami info Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk OK. I didn't recall it. I understand Bob Beck mentioned the same to Jim L this afternoon, that this came up before and the understanding was that it applied to Claughton Island, not being part of Watson, or Herald. I do not believe anything changed other than months on a calendar. We're basically. picking up from last summer when The Related Group pulled out and nothing was pursued by the City. That was July/August and it went into hibernation. The City states that since then they did research, did a legal review and that they do not feel the development they have proposed and will propose will be considered anything outside the municipal use restriction. One thing that was mentioned way back, in one of our conversations w/ Alice early summer was the interpretation of municipal use. They have a broad interpretation that they feel includes public/private partnerships, and apparently different than our interpretation. That was mentioned in a discussion on the Herald which involved filled lands subject to 1919 and not necessarily 1949. So, it seems to boil down to what one considers municipal use. Next step? From: Heiser, Gary Sent: Tuesday, February 18, 2014 6:09 PM To: Campanile, Nick; Leftheris, James; Courson, Clay M.; McCall, Cheryl; Sawyer, Thomas; Woolam, Scott; Thompson, Vicki Cc: Clark, David A.; Karter, Marjorie; Byrd, Connie; Reardon, Bevin Subject: RE: Miami info this case is not new to us. it is the same case that was part of our discussions several months ago regarding the 1919 Act and the Miami Herald Building. therefore, I need some clarification as to what has changed or transpired since those meetings_ thanks, glh From: Campanile, Nick Sent Tuesday, February 18, 2014 1:21 PM To: Leftheris, James; Courson, Clay M.; McCall, Cheryl; Sawyer, Thomas; Heiser, Gary; Woolam, Scott; Thompson, Vicki Cc: Clark, David A.; Karter, Marjorie; Byrd, Connie Subject: Miami info Watson island (and possibly beyond): 1 made copies of the Supreme Court ruling info that Alice provided today. This is new info for us. Jim, please distribute the three additional copies I left in your chair to Cheryl, Tom/Gary and Scott/Vicki. Clay got one. We can get another copy to OCA or scan and email. We have yet to read thru it but as the City briefly explained today, they feel the ruling affects the 1949 deed (T-19447) and everything falls back on the 1919 Act w/ a municipal use restriction. Also, the City mentioned what they consider qualifies as municipal use (includes public -private partnerships). At this point they are in the "dialogue" stage with us. Also, note that this may touch other areas beyond Watson Island and the (former) Herald property. We can discuss all of this further with OGC and OCA. 2 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Timeline —something changed from my conversation with Alice last week and now the City feels if anything is needed from us, it would be needed before the end of May 2014. That would include BOT if needed. Tight, particularly if BOT action is needed, and they have yet to secure partners w/ Flagstone, etc., etc. Look for my meeting notes soon_ Then let's plan a time to discuss further. OGC and OCA too. This week preferable. Jim — let's work on it. Nkk Campanile, PSM Division of State Lands 3900 Commonwealth Boulevard, MS 105 Tallahassee, FL 32399 Nick.Campanite@dep_state.fl.us 850-245-2642 Office 850-519-0245 Cellular 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk City Commission Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Meeting Minutes May 8, 2O14 ChairGort: Thank you Commissioner Carona: Mr. Chairman. if1 could just say something with — related to what she said Back in 2012 I tried to have a referendum or have this Commission pass a motion to have a referendum where after Y'humber ofyears -- in other words, ifa lease property is voted by the voters. they will have ."lumber ofyears in order to do the construction, because it's really unbelievable that back in 2001, this is when the voters voted for this. And, yes, ifyou look at history, from 2001 to now. there's been a lot of people that have been voted in offers [sic], voted out ofofjlce; and in fairness, there's not an infinite amount of tune or there shouldn't be. 1 mean, all ofus have terns limits, so / think there should be some type of term limits. So I tried to do something bock in 2012 with regards to that so it goes to referendum, and actually, very candidly. I'm going to try again to see if it'll make it to the August election so that -- And once again. I'm reasonable about it. you know, but there should be an amount of time, once it's passed by the voters, for constntclion to start, at least to accur, begin, the permits being pulled, because there's no reason that it should be 13, 14 years and we're still at this and nothing has occurred, against the wishes of the voters. Chair Gort: Thankyou. Ms. Reynolds: Mr. Chairman, / was going to just say this an item number 11. ifyou would just indulge ore for another 30 seconds. Along the same vein, the biological assessment of this area is aver a decade old as well, so there could be soft and hard corals growing there: and what this Flagstone has done is mitigated for .96 arms of sea grass. Thai could be totally difibrent today. So at lease, ifyou are going to move this forward, which 1 hope you don't, make .sure that you have not only an up -to -dare land assessment but new information as you move fonvard. So at least extending this, giving yourself more time to get the accurate information would also be good. Chair Gorr: Thank you. Mr. Hannon-: Robert Zimmerman. Robert Zimmerman: My name is Robert Zimmerman. Ilive at 1000 Venetian Way, Mr, Sherman .Colgate Darden wanted to speak to the Commission: he wailed many hours but he had to leave to a nonprofit event. May 1 read his very brief statement prior to reading mine? Choir Gort: Go right ahead. Mr. Zimmerman: Thank you very much. "My name is Colgate Darden and 1 live a 250 West San Reno Drive. I'm asking the Commission to postpone the Flagship project in order to conduct up to dole and proper studies of traffic issues facing neighborhood roads and the residents of the City of Miami and a/1 others in the County and directly bearing on the County s economic engine. our travel Industry. The following information comes in part from past observations. discussions among various homeowners associations, and the Venetian Way Neighborhood Alliance, among others. in addition. professionals -from out of the City were retained to offer their expert opinion on this issue. There has been no traffic evaluation oldie impact of the Flagstone project since 2004 and partially updated in 2008. The expert analysis of prior studies was conducted by Little John Engineering Associations based in Orlando. This firm was selected because of thefear that local firms are potentially under the thumb oldie City Itself and stand to lose business if a study is adverse to the proposed City interest. Their conclusions were straightforward. The earlier studies were materially outdated, and the study design was insufficient and brings into question the validity of the traffic study as a tool to be usedfar the project entitlement processes today. 1Sn attaching the study sunrnrary to my comments and ask that they be inserted into the record." Thank you And 11l read my statement. My name is Robert Zimmerman. /'rn Are president of the 1000 Venetian Way Condominium. 1 City of Miami Poo32 Printed on 6'S.2w4 City Commission Submitted into the public record for item(s) CA.7 on 04/28 2016, City Clerk Meeting Minutes May 8, 2014 represent 300 residents of the City of Miami. who believe that the current proposal will be extremely detrimental not only to our neighborhood but also to the entire population of downtown Miami and the Venetian Causeway neighborhoods. I speak of cial&for my association. and I'm also in contact with several other homeowner groups who share orrr concerns. We're concerned about all the issues that Mr. Herbals and others have raised and will raise here tonight: a lack 0-a current traffic analysis. public subsidies 10 a private developer, impacts on public safety, and evacuation resources and other concerns. !would like to focus on environmental issue in my discussion here. The dredging activities that will be required for the Flagstone project will deepen the channel, thereby strengthening the impact of storm surges. Stronger storm surges will negatively affect the Biscayne Bay ecosystem, as well as the billions of dollars of bzdldings, homes, and comnterrial properties located on the shoreline. including those along Biscayne Boulevard and the Venetian Causeway. 1 ask these questions: Does the current agreement require that adequate insurance be maintained for the inevitable damage that will occur at some time in the next 75 years due to sea level rise and the storm surges that increase in strength and size as a result of the deepening of the channel? How are all those homeowners and property owners going to be compensated for the increased storm surge damage to our properties that will occur in years to come as a result of the dredging this project requires? 1f the City fails to require the developer to provide proper insurance for these increased risks, we, the taxpayers, will be required to compensate property owners for the damage surges cause. This requirement represents another subsidy for the developer to which our community as taxpayers is opposed. Thankyou very much. Chair Gore: Thank you. Mr. Hannon: Steven Herbits. Steven Herbals: My name is Steven Herbils 1 Jive, at 1000 Venetian. 1 request that my --full text of my remarks be included in the record if possible. l make a very briefstatemenl now. My comments here are not intended as a criticism of the City's original agreements; however, in the year 2014, the combination ofvast public subsidies for a private developer on public land, plus the major changes generated by the Clot of Miami in recant years call for a serious reevaluation of the community's vision for Watson Island The project does now propose involves a multitude of public subsidies that will be imposed on the City's taxpayers for the benefit of the developer. First, the current proposal allows Flagstone to pay rent based now and into the future on appraisals conducted in the year 2002. It is now 2014, and the land has increased in value by a multiple of almost 400 percent, based on the appraisals that the Ciry itself conducted in 2013 for The Related Group proposal. Based on these appraisals the rninirnum rent should be over 87 million per year. Public records show that even the officials at the Florida Department of Environmental Protection suggested that new appraisals be obtained by the City and a third by the State and rents updated to current fair market value for the entire project. as the Stare receives rent for this project as well. i understand that the City Charter forbids the Commission from leasing public land unless it is for fair market value. We're just heard this discussed in the previous discussion. My question is: Has the Commission asked its attorneys if the current rent structure meets the requirements ofCharter Section 29B? We were also informed yesterday that the Ciry commissioned two new appraisals. My questions are: Why were the new appraisals suddenly requested by the City? Is it the Conmrission's Intention to change the current rental structure to account for the new appraisals? And why hasn't the public had an opportunity 10 review these before the Commission meeting? Secondly, according to scientific data and models, this -- the work done on the bay will create ern increased likelihood ofdamage from hurricanes, storm surge and wave impacts due to the fasterjlow and higher waves that will be generated by the deeper waters upon which the project will front anti the gradual. much deeper water resulting from sea level rise during projected 75 years. There is no evidence that the proposal has token account of lhefull potential to suffer massive damage in year 2020, 2030 or 40 or 50 due to the unanticipated impact of these factors. This risk creates an even greater finandal exposure for the City than iscurrently disclosed My question is: Is there a sufficient insurance mechanism to Cityofl4iarru Printed int63281a Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk City Commission Meeting Minutes May 8, 2014 protect the taxpayers from this risk in the current agreement? lino:, it is another to rpayer subsidy hidden from the public. given to the developer. This concern is not some futuristic or media conjured,Jhntasy. Last month Illinois Farmers Insurance Company, you've just heanh filed a class action lawsuit against the City ofChicago accusing the City ofrrot adequately increasing their storm water storage capacity that caused heavy rainfall to flood hundreds of homes in 2013. 7711rd, Flagstone's failure to launch this project for the prat 10 years is common knowledge throughout the community. My question is: Has the Commission imesligated the reasons this developer and this project, with all opts changes and expenses, have not received any support from the financial markets all these years? 1'd like to clarify one spec fc issue: Despite language in an earlier resolaion extending the deadline for this project, the financial problems were not started by the global financial downturn. That did not occur until the late fall of 2008. fitlfyfouryears after the MUSP (Major Use Special Permit) was approved. The resolution misstates a matter affect. Public records show that evert in Tallahassee again, government officials had concerns about the developer's lack of progress and doubts about its ability to succeed. That is why the State amended its modification documents to wash its hands of any particular developer and place the entire burden affiliate on the City and the taxpayers. In the case offailure, for whatever reason — fmanckd, structural design, lack of business management, competition from the other $10 billion in downtown development. including three other major mixed -use mega projects, plus Merrick Park, plus the Design District upgrade, or whether it's just a bad idea — the taxpayers would be stuck with a need to resale the facilities at an even greater subsidy or demolish them. My question is: Has this risk been bath into either adequate insurance provided by the developer or into the rents for the use of this public space for private profit? In either arse, fit is not done, it is another taxpayer subsidy. Fourth and final, there are forins ofsubsidies for which no record seems to provide an answer. My questions are: What are the incremental costs to the City, the taxpayers ji r capital expenditures being provided for this particular property over and above developments on the mainland; infrastructure, roads. wastes, water. and other services: fire- rescue, police, security, et cetera, on the bay? lfthere are unusual costs to the City being provided this development. it is yet another subsidy, unless -the rent covers them. These issues, I'm --1 will suggest are far from going away. I know it's been 13 years. I suspect it's going to be a lot longer before all of this is resolved. Thank you ec.'ymuch. Chair Gorr: Thank you, sir. Mr. Hannon: Samuel Dubbin. Samuel Dubbin: Thank you very much, Mr. Chairman. My name is Sam Dubbin. I'm on attorney. f represent Steven Herbits and the 1000 Venetian Key Association. Inc. I am attorney. Weis here to discuss Ike current proposal, not to critic1 a the original plan. And 1 want to emphasise that notwithstanding when Mr. May said about the current proposal being, quote, the very same project that was approved by the voters in 2001, that is not the case. The MUSP has been modified at least once. The project was changed substantially in 2009. Those have all been acknowledged in Ciry resolutions and Slate resolutions, and there's another MUSP modification pending so we're talking about what s on the table today in 2014, a totally new project. I did hand to the City Clerk Exhibits I through la which I request be made part alibis record. They support the points that 171 be making fn this presentation. And f understand that there's somejlexibilfty, since I'm representing a homeowners association. in terms of the time that I have to make this presentation. The first thing 1 wanted to inform the Commission was that 1 have a letter here froze Professor Stephen Mahoney. He is the conservation chair of the Sierra Club ofMiaml. His fetter requests that the Commission take a pause; that this maser — the new matterfrom the State has now been put on this agenda with seven days `notice He believes It has serious environmental ramifications and others and asks that there be adequate tunefor all alike ramrfrcations and implications of the current proposal to be considered. My clients oppose the proposed resolutions, and 1 will address today the issues that seem to be the most prominent that have been suggested in the recent discussions. since in the last ten days or so when the State Cary ojMiami Page 84 Pelmut or d a 1o14 City Commission Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Meeting Minutes May 8, 2014 and the City evidently got together and decided that they would make an effort to allow Flagstone to have the approvals to meet the June 2 deadline. The principal argument that 1— that we've heard is that the City has an obligation, quote. ingoodfaith to continue to allow Flagstone to meet the June 2 deadline, because of the June 10 resolution and modification. So there are a number of questions about good faith on the — that the City might owe, because ifa contract has o good faith obligation, it's a bilateral obligation; the other side has a duty of pod faith as well. The first question is, back in 2010 what was the consideration that was given by Flagstonefor that so-called goodfaith obligation? The public record shows that although there was an addition of preconsinration rents, there was also a withholding of previously due rents. and what 1 wotdd only classify as a game of chicken where the developer said. 'Well pay this money iifyou give us the extension." So first question is: What was the consideration paid for the good faith obligation? Now the question is: Is Flagstone acting in good faith? Because the reason we're here today is that although the State approved a modification in 2011, Flagstone violated the terms of that partial modification in January of 2012 when it failed to satisfy the oulstandmg judgments that were specifically referenced in that2011 modification_ Now. retards -- that was January 2012. Records obtained from the State of Florida in the last few months — last few days actually — slow that, as the City was pushing the State to make this deal happen, as late as April 14, 2014, some of chase judgments were still unpaid to over two years after the original deftndt. So if Flagstone had an obligation to the.Clty and the State under the 2011 State approval, failed to meet it in January 2012, and failed 10 correct it even in more than two years after that time, 1 think that raises a question of the good faith of Flagstone. Flagstone also failed to pry the State the preconsiruction payments it was obligated to pay under that 2011 agreement. That's over $225,000. And the current proposal front the State obligates the City to pay that money. Now. 1 understand there's an escrow that Flagstone's lawjirnt Is holdingof$226,000. presumably. to meet that obligation. But drink about it: Thal money was owed, contractually owed by Flagstone In order to meet its goadfaith obligations under the agreement, and instead of paying it, they put it in escrow and made the demand that it will only be paid if the deal is perpetuated. 1 don't know ofa landlord who would allow a tenant to withhold rent for two years, put it 1n escrow, and then tell the tendiord "I'm not going to give you the mone vfrom the escrow unless you extend my lease." That's just not the way people behave. So holding back on that money is not good faith. And I think, Mr. Chairman, the City has the right to ask Flagstone and ask the City Administration where is the demonstration of good faith? Because that' — this is a matter of record. There's another consideration. again, in public records, which we had to fight in court to get, that as of February 2013, City records show that Flagstone owes the City $302.150 as paymenrfor the DRI (Development of Regional Impact) credits it obtained back in 2005. This is an e-mail (electronic) — I put it in the record —from Mr. Madan, a City staff person, and it states very clearly that on February 12, 20I3, Flagstone Island Gardens has only paid the reservation portion of the DR). According to the original invoice issued in 2005, they still owed $302,150. This will have to be revised based upon updated fee coefficients. So Mr. Chairman, 1 ask you — perhaps the City would be prepared to respond — has that been paid? And how was it good faith for Flagstone to withhold 3302,000 that it owed the City as consideration for getting the right to propose this rather large development on Watson Island and not pay the City for over eight years? Where's the good faith? So when the good faith argument is made. it's a bilateral obligation that the City has pushed lard, but the --so the other serious concern I need to raise, Mr. Chairintm, is that this deal, from what's publicly available and in this record violates Section 29B of the Ciry of Miami Charter. which prohibits the Commission to lease Ciry-owned land unless it obtains fair market value from the lessee. The — it's clear that the current lease payments were set on 2002 appraisals` Thai's welt documented it s in the State cabinet approval. It shows the 2001/2002 appraisals valuing this property at 29.3, 329.4 million. That yielded the 82 million minimum payment In 2013 the City authori..ed new appraisals far the Related proposal, and the appraisal that was done by Invesrms Research Associates, Inc., May 26, 2013, was only addressed at the increment that Related was going to add to the existing base line. that was — again, public records reveal that it was the developer who pushed back on the City and said, "Well. ifyou're going to do new appraisals. we think it should only apply to the increment; "question whether or not the City was right to acquiesce on ,JMrand Page as Printed on 63201 a City Commission Submitted into the public record for item(s) C on 04 28 2016y City Clerk Meeting Minutes May 8, 2014 that. but that's what the new appraisals did And this is Exhibit 5 in the materials that I submitted. 11 concludes at page 52 that the fair market value of the land today was 345 FLR, yielding an incremental value in 2013 of317.1 million, but what about the original footprint? Thal value has gone up astronomically as well. Why? We all know that the population has expanded in Miami; commercial activity. cultural activity, hotels. So the — if j ni extrapolate the 345 FLR that the 2013 appraisal of die City found to the entire project, that land today is worth 3110 million in 2013. I suspect to 2014. it's worth even more, And so the fair market rent, as Mr. Herbks said, today, its not two million minimum; it's over seven million minimum. So -what Section 29B of the Charter providing that the Commission is prohibitively -- prohibited from favorably considering arty sale or lease of property owned by the City, unless there is a return 10 the City affair market value under such proposed lease or sale. This- data is in the City files and in the public record. So you might ask the City staff whether there's a contractual provision that somehow ties the City's hands to only charge rent based upon 2002 appraisals. knowing that today the fair market value is almost 400times greater than that; and if there is such a provision. you might ask whether it violates Section 298 of the Charter. This is an issue that will surety result in litigation, 1 suspect. depending on the outcome. The final point is the processes the City has engaged in to advance this project have been very — have been deeply troubling. They've been secretive with minimal public scrutiny and input. My clients have had to file a number of public records lawsuits in order to get public documents that are really public records under the law. The City's responses have been constantly delayed and obstructive. When records are produced they're invariably 10 to 12 weeks old. which means that the information that my clients gel is sometimes unable to be acted on because the City's already taken the next step. So this is a very troubling development, and they use the excuse that they have to search for exemptions, but the exemptions that are found have nothing to do with this project, and so it's a delay tactic. And most recently. this morning Judge Abby Cynamon ruled that the City's withholding ofa very large body of documentsfor over four months, using the argument that they were exempt under the Public Recovzls Law, was invalid Now, these documents that were withheld go directly to the negotiations that took place between the State and the City aver the fast several months. By denying my clients access to those public records, which llte judge ruled today my clients were always entitled ta, the City prevented the public from having a meaningful input with the information that the City had as 10 what was being decided at the State level That's — that totally guts and undermines the purposes of the Public Records Law. So f would also ask the City here today, because the judge gave the City three days 10 produce those records, whether it will agree to produce them voluntarily and waive as right to appeal, because we hope that this Commission believes that with the judge already ruling that this was an irnpbper claim of exemption. that it would be in your interestfor the public to have all the information they need to meaningfully participate in this entire dialogue_ So 1 would just conclude by saying that, you know, there's talk about litigation and suing as a result of this decision; could be. One way 10 avoid that would be to take a step back and say serious questions have been raised about Molar _ market value ofihe rent, about the environmental impacts. about the lock of a traffic study. about the secrecy with which these negotiations were done at the Slate. Why not extend the deadline for Flagstone? Put — conduct current studies- by. you know, independent experts outside of South Florida so that you really know and the public really knows that they're getting the straight scoop so that there can be a meaningful. substantive dialogue between the City and the public about exact — about the future of Watson island Because os Commissioner Carotlo said, it is the last great public land, and with all the development that's occurred downtown in the lost decade, development which the City Itself has cited to get the Pottinger restrictions waived. why would the City subsidize o private developer to do on Watson !stand what the private market has been doing downtown all this tine? Unidentified Speaker. True. Mr. Dubbin: That's the position ofmy clients, and 1 hope that II -there are any questions, yau'!1 give me the chance to answer them, and thank you very much for the time. <7.i1 y of Miami Pq¢c86 Printed on 61:2014 City Commission Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Meeting Minutes May 8, 2814 Cliy ofMtanrr Chair Gort: Next Commissioner Suarez That's It? Mr. Hannon: A! Crespo. Commissioner Sum:: 1 thought Al already went. AJ Crespo: Al Crasp°, North — 689 Northeast 92nd Street. 14'ell, / certainly can't top that, but 1 can echo the concerns that this gentleman raised about public records. You know, I know all of you at one time or rowdier and some ofyou all the time really have a real antipathy towards what 1 do and how 1'rn able to get the documents that I'm able to get, but I get public documents- ! don't corn here with et gun and a mask and say "stick ear up: give me the documents." 1 write a letter and say, " I'd like to have the public record." Yes, Mr: Torte, you too, with your shrug You know. we're going to have a real serious problem, Mr. Torre here, in a minute. but to get bock to this issue, to get back to this issue. Mr. -- Commissioner Hardemon, you know, you're the luckiest City Commissioner in Miarni, because you heard Mr. May talk about the fact that the first people are going to get hired are the folks in Overtown, you know. And Mr_ Berkowit heir, he wrote a letter to EDS, to Congressman — Congresswoman Fredericka Wilton, you know, citing the fact that the importance of his doing -- building his project was, in port. predicated on the fact that of all the benefits and olt the jobs that were going to come to the folks in Overtown, and those good folks over there are going to build a World Center. They, too, have said, "Boy. you know, it's alt about hiring the people in Overtown, " You know, you're going to have to start bussing people into Overtown to be able to get all these jobs that all these developers keep talking about they're going to provide for the folks in Overtown. 'cause you ain't got enough people there. you know. This is an ama_ing thing. I think everybody should be applauded for this, you know, for all of this, you know, rhetoric. you know, and 1ypocrisy and how they do this, you know. And the first people They put out there are. "Well, we're doing it for the folks in Overiown, for the jobs. But in reallty. you know, the folks in Overtown don't get the real jobs and they don't get the real benefus, 'cause of they did, Overtown wouldn't be in the bad shape that it's in and continues to be in, you know. So that's all just --1 can't even say the word. But you know when I'm saying when 1 say that that's all "coca, "you know. So that's what — Vice Citair Harrtenron: 1 need your help. Mr. Crespo: Huh? Chair Gall: Thankyou. Vice Chair Hardemon. 1 need your help. Mr. Crespo: Well. brother. 1 told you. call are arry time. Chair Gorr: Thank you. Next Mr. Hannon: Ken Jett. lien Jett. Ken Jett, 8320 Ease Dixie Highway. I'm here today representing myself as an individual taxpayer. 1t's going to be quick. I'm just going to urge you to oppose both 111 and 11. Ifyou do moniting shod of turning it back to the people, it will be a sad clay fir me. Thanlo. ChairGori: Thank you. Mr. Hannon: That's it. Chair. Nye Sr - Prbned on 6%2014 City Commission Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Meeting Minutes May 8, 2014 Chair Gort: Okay. Now, I'll close the public hearing. A lot ofquestions huve been come up, and I hope you written down so you can answer those questions. I have two of them. My rutdersianding, two statements has been made that the — this contract has been in default twice. I want to hear from my staff Commissioner Sarno)/: Can! (UNINTELLIGIBLE)? Chair Got? • Sure. go ahead. Yes Commissioner San of So Madam City Attorney, I'm duly impressed by what everybody said today, and I'd like to renegotiate with Flagstone right here. Do I have the right to do so? Robin Jones Jackson (City Attorney's Office): Robin Jackson, Senior Assistant City Attorney. At this point, there is only one thing that 1 have hearrt that l was not aware of in regard to some payments offees to the Ciry, so I would like for someone to please address the information about the DR1 fees. The information about the escrowed monies, which 1 appreciate Mr. Dubbin, t think, has only got part of the information, they're not monies to the City. They are, in fact. monies that are escrowed to the State, and the State actually has refused to receive the monies until a new set of partial nrodffications was negotiated So I wanted to clear the record up for that. So what I need to do is I need to hear from everyone about the DRI fees. Thank you. Mr. Dubbin: Could I respond to that point? Chair Gort: Excuse rue. Mr. Dubbin: Sony. Francisco Garcia: Good afternoon, Commissioners. Francisco Garcia, Planting & Zoning • director for the record. I would like 10 confirm that the statement that was made Is correct. Thus far, the amour of $63.161 has been paid towards impact fees. 1t hos been accurately described as a reservation.* that includes the master planning recovery fee and the administrative pracessiugfee, and that is all that is due at this paint in time, until such tine as they apply for and pull a building permit. Commissioner Sarnoff: So, Madam City Attorney, I'd like to re -ask my question to you one more time: i am empathizing sympathizing, curious, that 1'd like to renegotiate with Flagstone right here, right now, and impose upon them some really big fees and costs and rental payments. Do 1 have the right to do so? Ms. Jackson: 1 need to ask a question again of the Planning director. Thank you Mr. Garcia. if you could come up. Mr. Garcia — and I appreciate 1170t I have not had the opportunity to have this or aware of this particular circumstance — at what point in time are those DRI fees due to the Ciry? Mr Garcia: The ones that have already been paid or the ones that ate still outstanding? Ms. Jackson: The ones that are still outstanding. Mr. Garcia: I will state it again for the record that those would be due ar such point in time as theyapplyfor a building permit. Ms_ Jackson: And at what point to time would that be? Mr. Garcia: Whenever they are ready to applyfor a building permit. There is no time limit on that. Cry vfMiami Itgr 88 Printed air 41:2014 City Commission Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Meeting Minutes May 8 2014 Ms Jackson: Thank you. And in regard to the ones that have previously been paid, then they have fulfilled all of the current obligations at this time for any of the payments of thosefees? Mr. Garcia: That is coned. Those fees were paid back in 2005, and drat wasdone to reserve their DR1 credits, which they /rave done. Arts. Jackson: Thank you. sir. Mr. Garcia: My pleasure. Ms. Jackson: Mr. Commissioner, Chair, Vice Chair, 1 believe then that at this time that we do not have a circumstance where Flagstone has not fulfilled the conditions precedent upon which they are obligated at this time tofulfrll, okay. So I believe that what they're saying is that they have done the things they're supposed to do in good faith, and 1 believe the City has done what it is supposed to do in goad faith. Now. let me come in and explain a few things on the record, because i realise it's very hardfor people to realise that when a referendum occurs in 2001 and Me voters approve a project with ntlnimum terns and conditions and then the project. for whatever reasons over time. takes long time to do this as this one has. than there could not be economic ups and downs, which have occurred However, in 2010and 2011 Flagstone and the City reopened the roral negotiations of every single thing in this deal. and 1 will say that I appreciate the efforts that many off ou on this board and our Commissioner who's right now out at another meeting and our former City Commissioner, you know, who was here that assisted as well as ow -former City Manager, Carlos Migoya. The whole thing was totally renegotiated at that time in 2010 and 2011. At that time, they could have renegotiatedfor update appraisals. That did not occur. What did occur is an annual update CPI (Consumer Price Index) index that happens every year on the anniversary date of the possession date under the fret lease, That has a floor and it has a ceiling. it has a 1 percent floor on the increase and a 5 percent increase, which is the ceiling, so every year there's an opporruniry for the base rent to be revisited to do than The minimum base rent is32 million. Regarding the insurance, 1 will say to you right now, !here's nor a legal requirement regarding the sea level rise study. I believe had there been in place in 2010 and '11 sea level rise study requirements an the Federal and Stile level, that that would have been included in the agreement then, but vis-a-vis that right now there's not a legal requirement to have that shady. However, I do believe that the insurance provisions, which are subject to Ciry Manager approval, with Risk Management approval- and, you know, Flagstone has worked with us to be able to look at what's reasonable under the circumstances regarding insurances as it's needed from time to time throughout the project. In regard to everyone's good faith obligation, Flagstone has been to the State_ The Ciiy has been to the Stale. As you all are aware, the Slate Board of Trustees will consider this on the 13t11. The City's obligation is very clearly only in place if the City receives money from the developer. I said this yesterday al the Cabinet aides' meeting on the record in a question that was posed to me by the Attorney General's Office. The question to me was "What is it then the ,;rate receives? "The very clear answer is, "The City is only obligated to pay the State 15 percent of whatever revemies the City receives fivm the developer." The definition, so you understand, of 'gross revenues" is 18 pages long. This Commission helped us in 2010 and 2011 to completely renegotiate that, and that encompasses all of the components: the marina component, the parking component, the retail component, and the hotel components And the City will receive — d�ereni percentages of those rents that the developer receives the Ciry is iken obligated to pay the State. Its very dear The State understand this, as of our meeting yesterday, and the draft that's there to be placed before the Cabinet that the City's obligation is only regarding what we receive. If there's financial difficulty for the developer and we don't receive the funding beca:tse the payments to the State are trade in arrears. then the City is not obligated to pay the State. If we don't receive it, the Stare doesn't receive it. lfwe do receive it, the State receives it. It's very clear. I'm trying to —and I appreciate — I've been trying to take notes from what everyone said. and ! certainly appreciate everyone's comments on this 1 do believe that there Is a letter and information from Ciry uf.Mivml Page SD Prini& on 4/2014 City Commission City ofMtamJ Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Meeting W mutes May 8, 2014 Flagstone about the updates on the conservation and coral and sea life mitigation, so / would like for them to respond_ I'd be glad to coma back to any questions that the Commission has to do that. And I'd like for Flagstone to, you know, continue to try to address the questions that are beyond my ability to answer, because they're really business questions. But. please, I'm glad to come back for anything else that you'd like fir me to answer. Thankyou. Chair Cori: Thank you. Commissioner Sornojf: My question really is — and I think I have to go bock to you and then id like to get to the business questions. Ms. Jackson: Thank you. Commissioner Sante:• Is any attempt to improve this agreement could result in a breach of the agreement by the City? Ms. Jackson: Flagstone would have to be willing to do that, and I've said this to you previously in past years. At a point in time where there is no breach —and I didn't know until I asked Mr. Garcia the question on the record, because i was not aware of the DRI fees — that there does nor appear to me to be any breach, so Flagstone would have to be willing to do that However, Mr. Commissioner, right now Flagstone has the opporIuairy to continue fulfilling the conditions precedent until Jane 2. At such time -- because several ofyou have asked me this question: What happens on June 2? Oa June 2, if the parties, you know, ware not able to get this done, then there would be potentially an ability to renegotiate; there could also be ability for either the City or Flagstone to walk away from the deal. So -- and their was negotiated by this Commission back in 2010 and 2011, also with Flagstone, and I think everybody negotiated that in good faith. CommissionerSarnofj.- So then any —do you mind? Choir Gort: Go ahead. Commissioner Sarnoff: So then any aaeinpt to unilaterally impose by any Commissioner or the Commission to change this deal could be viewed as a breach? Ms. Jackson: Deja vu of 2011. 1 believe that. yes, right now a unilateral change gfposition is not possible by the City. 1 believe it would be a breach of good faith on behalf of the City, unless Flagstone was willing far it to be o mutual_ But it's not something the City could unilaterally impose at this time. Commissioner Sarnoff And if we did unilaterally impose that and they held us in breach, how matey millions of dollars would we be exposing the taxpayers to the City of Miami? Ms. Jackson: My understanding is that Flagstone has in excess of 58 million, okay, and it may be more than that. It'sj first 58 is the last documented amount that we were aware of Commissioner Sarngf: So a unilateral attempt by any Commissioner or the Commission to Impose upon a new terra that Flagstone was unwilling to accept could essentially just above wipe out our reserves in one fell swoop? Ms. Jackson: I'm not going to comment about the amount of the Citv's reserves, but I can say that it would be a very, very expensive potential breach_ Commissioner Sarnofj Okay. And then I have a question for yam. Is that all right, Mr_ Chair? Chair Gorr: Go right ahead- I'll leave it to the attorneys. Poge90 r,;rueaan6 :2014 City Commission Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Meeting Minutes May 8, 204 CAYsiMirma Ms Jackson: Thank you. Commissioner Same' I believe the real estate guy is better than me at this. I have a question — Chair Gort.• Hell go (UNIATTELL1G/BLL-). Commissioner Sarnoff.• for you, Mr, — Mr_ May it's good to see you on the side of good and just. Mr. May: It's great to be here, Commissioner. TTrank you for having me. Commissioner Sat ngfjf Ultrnmately fsicj, it's a — Commissioner Suarez: 1 think he's saying its "ultra"good to see you. Commissioner Sarnojf Right, ultra good to see you, ultramately bid_ You were sired jar a munber of years — not you personally, but your client war sued for a number ajyears, correct? Mr. May: Yes. Commissioner S'arnoff How mot;v years? Mr. May: About two and a halfyears. Commissioner Sarngff.• Okay. And that resulted in a settlement? Mr. May: Yes. Commissioner SartrojJ And that resulted in a settlement with Mr. Herbits? Mr. May: I believe so, yes, sir. Commissioner Sarnoff Okay Do you have all the permits necessary to do the water portion? Mr. May: Yes. Commissioner Sur age Okay. Are you in good faith belief that all of your payments to the City of Miami are current and good? Mr. May Yes. Commissioner Sarngjj: Thank Mr. Chair_ Chair Gori: Yes, sir. Commits -toner Sitarez: Thank you, Mr. Chair. 1 can understand the frustration that members of the community have when a deal begins in another decade and has not been started and one such deal that Robin and I always talk about is our 2001 bond series that was approved in 2001 but is not finished in its expenditures. and it's 2014. You know, we as a Commission, I think, have — when we got herd the deal was renegotioted at that paint. And think we've reached kind ofa deal fatigue paint. and I think, you blow, we've talked about that — Mr. May: Sure. r.,xr 91 Printedvire/5120U City Commission Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Meeting MInutes May 8, 2014 Commissioner Suarez: -- where, you know, we feel that this is kind ofa last stand, youknow. one way or the other. Arid 1 think you knmv, what happens.is every time this conies up, there's almost a re -litigation of the entireprocess. rind, you know, in this particular case, l think what we5•e doing here isa very -- almost aministerial act. But I do think there is o —you know, and I think -we all agree, and I think we all 'mow, so I'm fast going to say it — that there is a point where this could be a deal that gets re -litigated an re -discussed k you know. your client doesn't come forward and perform as we had hoped that they would. And I think, you know, zvebe all — part of thereason why we've — and let me just digress a second and say —'cause I want to address a comment that Commissioner Corolla made, even through he had to go. You !meow -- Well, let me start by saying — let me ask the City Manager a question. Mr. Manager; how much money War the City of Miami receiving from the Flagstone property prior to leasing the property to Flagstone? Mr. Alfonso- Expenses. Commissioner Suarez: Right. Welk first answer my question and then — Mr. Alfonso: Zero. Commissioner Suarez: Right Mr. Alfonso: it cosh money. Commissioner Suarez: Right. So, in other wards, we hove what was an expense of an asset into a revenue -producing asset that is now producing a million dollars a year. Maw, you could say we should be getting more, we should be getting less, but prior to this deal, we were getting nothing. In fact, it was costing us money to have this. And this has always been a very controversial piece ofproperty. For many, many years there's been many, many deals that have come andgone and were never successful. Sty you know, I think we fund ourselves at a bit of a crossroads, you /aaow, with treJmte deadline. I think what we're doing here today is ministerial, even though it affords people, since its a public hearing, an opportunity to vent and express their frustrations. I have — if the June date comes and goes, l'nr open to the discussion of making this into green space and rethinking the project from its inception. You know, it has been a decade and a half 1 do firmly believe that a mega yacht marina is something we do need in the City of Miami. I've always believed that and I've always said that, and that's part of the reason why I've always kind of bent over backwards to make this deal happen, because think that's a component, as is mass transit, you know, as is convention center. I mean, those are components of things that make a airy great. So, loop; I understand the fnrstration on the part of the members ofihe community 1 understand the desire to kind of want to reanalyze this every time that there's an opportunity potentially to do it. Ijust don't think this is the right moment. I think the right moments will come potentially-1'm sony? Chair Gaut: June 2, Commissioner Suarez: Yeah in June 2, and i think there are many people that, you know, are not -- !et s just say that the history of the parties is such that there has been doubt as to the ability to perform, and I think we've a!1 been very clear about that too. So, you know, I think. you know, we'll know whats going to happen between now and then. I think, you know, this is not that moments"' �m�enu whaLsyLivartirva urea xt•tod uailersi ?a— ta: ..coven (, tilt is ro osats7". Flagstone -a ryi ing to receive is Ward i atver, whet, in my opinion. does not put the City in any more detrimental position, because 1 think there was a point al which that possibility, might happen, and there was a point at which we were being asked to guarantee payments and things of that nature, and I don't think that is what is before us now. So what's before us now seems almost to me life a swap ofthe parties andjuct find ofa reconfiguration of how the payments are made without any sari- ofa guarantee, and the deal was not materially Pace 91 Primed mr t!S2ai4 City Commission Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Meeting Minutes May 8, 2014 Qs. of tftumi changed in any respect. Is that a correct restatement of stauldyau consider that correct? Ms. Jackson: One positive thing is that the Clty no longer hasa S300,000 minimum payment to the Stale — Commissioner Suarez: Right. Ms. Jackson: — which was in the previous State waiver when we had the tri party agreement tnnongthe City, the State, and Flagstone. Commissioner Suarez: Right. Ms. Jackson: The State, 1 think, veryfairly recognised that it was not fairfor the City to have that obligation if the City were, infect, not receiving the Ands to do that from Flagstone. So 1 believe that the State was vetyfair in dropping that minimum requirement, which we appreciated. Commissioner Suarez: And so I think you've swnmarized —you've done a great job of summarizing the legal position of the City. Ana' I think, you know, what you're saying in effea is that this is actually-- this minor modification is actually an improvement to our position. ironically. .1 knew that -- you know, members of the Venetian Homeowners Association, who are here, I know they have valid concerns. I'm not sure why, over the course of the last four years. this is thefirst si time 1 see you guys, because I think there were moments where your concerns would hove been -- well, it would have been better to see you, you know, in a moment where probably we could have been mote e!fective al addressing some ofyour concerns. I think this moment is not it, but I`m willing to meet with you_ I'm willing to discuss the future with you if you know, ifthe parties don't perform on June 2. Chair Gort: Thank you. Yes. sir. Vice Chair Hardman: the projeci• the --doesn't it include 60 percent -- like a 60 perxrrit green space, the Flagstone project itself? Are we sure? Does aiiynne know? Mr. May: I'm not stye :hot that's the percentage. Commissioner, but there's considerable green space an the property both along the promenade and on the upper deck. Commissioner Sarnofj: it's public space. Mr. May: It's public space. Chair Gort: It's public Still public. CommissionterSarnofj; Public space. Big public space_ Chair Gott .Let me tell you, Ilefl office in 2001; came back in 2010; and yes, I had a lot of frustration, because it was IOyears and nothing has been done. In discussion; the Related Group came to us — I mean, anodic?. Related Group, but the developers came to us. Al that rime 2010/2011, and they were willing to open negotiation..4t that time, I think we made some changes — this Connnisston that's silting here at this time — to snake sure that we get the best that we can of that time. And for that reason, my understanding is, I've been told by the Law Department we need to meet our obligations, according to all the statements has been made by our Legal Department and by the developers here. All the obligations has been made by the parties. so I'm ready to vote on it Commissioner Suarez: Mr. Choir, can I ask one —? Page 93 Prini,•d on 45,1e14 City Commission Meeting Minutes Submitted into the public record for item(s) CA.7 on g 28 2016, City Clerk Ci y ofMtami Chair Gorr*: I needa motion. Commissioner Suarez: 1 move it. Can I ask the Manager a question? Commissioner Sarno, Second Chair Gott: Moved. Is there a second? CommissionerSartrne Second. Chair Gort: Moved and second Commissioner Suarez: flow much rent do we get from Miami Marine Stadium? flow laic'tetu do we get from Aficuni Marine Stadium? Mr. Alfitnso: We don't get rent from Micuni Marine Stadium. C'onimisszoner Suarez: So it's. apriceless. piece of property that we get nothing for. basically, right? A _ Alfonso: We're nor receiving rent at this. time -- Commissioner Suarez- Right. M-. Alfonso: -- Commissioner. Commissioner Suarez: Thank ynu. Mr. Dubbin: Mr. Chairman — Chair Gort.• Okay. Mr Dubbin: — since my client's been mentioned in a negative and false tight. I'd like to address Commissioner Suarez: In what way? Chair Gori I'm sorry. Wait a minute. 1 don't think 1 heard anybody speaking negative about anyone else. Okay. Mr. Dubbin: (UNINTELLIGIBLE). Chair Gort: 1 didn't hear anybody -- my state — I don't have a statement or negative to any of the individuals, okay. Mr. May: I would like that same opparnmily, If it's ever afforded to Mr. Dubbin. Chair Gorr: Is any further discussion? Mr. Map: Because my client's been impugned -- Chair Gort Excuse me. Unidentifred Speaker: 1 welcome that -- May 8, 2014 P4te Printed co 6:$201.1 Submitted into the public record for item(s) CA.7 on 04J28 2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk CITY OF MIAMI OFFICE, OF TM', CITY ATTORNEY MEMORANDUM TO: Johnny Martinez, City Manager Alice Bravo, Assistant City Manager IROM: Robin J. Jackson, Assistant City Attorney n DATE: July 25, 2012 tfacin RE: Flagstone Island Gardens Project on Watson Island Proposed Second Amended and Restated Partial Modification of Restrictions to Deed No. 19447-G QUESTION PRESENTED: You have asked whether cbanges to the City's financial provisions from those in an earlier Amended and Restated State Partial Waiver would result in 'violations of the City's Charter, Referendum, or other applicable legal provisions related to the Flagstone Island C7ardens Project (the `Flagstone Project") on Watson Island, if such changes are detrimental to the City. BRIEF FACTUAL BACKGROUND: As of September 15, 2011, the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (`Board of Trustees"), the City of Miami ("City'), and Flagstone Island Gardens, LLC ("Flagstone") entered into an Amended and Restated Partial Modification of Restrictions to Deed No. 19447-F ("Amended and Restated State Partial Waiver") in connection with property on Watson Island (the "Property") deeded in 1949 to the City as owner by the Board of Trustees.- The Amended and Restated State Partial Waiver complies with the City's Charter provisions regarding the Request For Proposals ("RFP") for the lease of the Property, Flagstone's Response, and the required. November 6, 2001 Referendum (the `Referendum"). Due to a technical default by Flagstone, but not by the City, the Board of Trustees terminated the Amended and Restated State Partial Waiver effective January 17, 2012, and Flagstone is in the processes of curing its default to the Board of Trustees. Because of its cure efforts, Flagstone is not in default to the City under its other agreements with the City. At the request of Flagstone, the Board of Trustees and the City are considering a proposed Second Amended and Restated Partial Modification of Restrictions to Deed No. 19447-G ("Second Amendment'). Rjj328256 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk ANSWER: Any changes which: (a) diminish the financial return to the City under, (b) cause a substantial increase in the City's commitment of funds regarding, or (c) result in any other material alteration of the City's award of the Project under Charter Section 29-C would cause a violation under City Charter Section 29-A(c) "Safeguards". Accordingly, any such changes would authorize the City Commission to terminate the award after a public hearing Additionally, the ten ination provisions of City Charter Section 29-A(c) "Safeguards" would apply to any changes which would diminish the financial returns to the City set forth in the ballot education materials and the Referendum language requiring, with no public funds involved, returns to the City of (a) $1 million per year for construction rent, (b) $2 million per year as guaranteed mil -rim -um base rent when the Flagstone Project opens, (c) 1% of gross revenues from. the Flagstone Project components, and (d) 2.5% from timeshare license sales_ Accordingly, any changes which would diminish the financial returns to the City would violate the Referendum. In addition to required compliance with the Referendum, the Flagstone Project still (a) must comply with the City's RFP and Flagstone's original Proposal, and (b) must not diminish the financial returns to the City contemplated by the City's RFP and Flagstone's original Proposal. Flagstone has also previously certified to the City and agreed in the Flagstone Proposal to comply with the requirements of the City's RFP, as set forth in pages 14 through 24 thereof, which affirmatively state that the City shall not be responsible for any costs, fees, expenses, or commitment of funds for the Flagstone Project, including but not Iimited to the costs, fees, expenses of any and ail regulatory approvals, governmental assessments, taxes, and other governmental impositions. cc: Julie O. Bru, City Attorney Maria J. Chian), Deputy City Attorney Attachments: Amended and Restated State Partial Waiver, dated September 15, 201 1 City Charter Sections 29-A and Chapter 29-C Ballot Education Language and Referendum Language RFP pages 14 through 24 Flagstone's certification to the City from its Proposal Rjj328256 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk MIAMI QUESTIONS 1 PROPUESTAS DE MIAMI BALLOT QUESTION -NO. 1 AUTHORIZING 45-YEAR LEASE OF CITY -OWNED UPLANDJSUBMERGED LAND ON WATSON ISLAND Shall the City lease City -owned land consisfing of 24.2 total upland and submerged acres on n Watson island to Flagstone Properties, LLC, for development of a mega yacht market, hotels with timeshare units, a matitinie museum, public gardens, cultural facilities, restaurants, retail and support facilities, for 45 years with two 15-year renewals, subject to capital investment, subject to a minimum annual guaranteed rent of $2,000,000 and other conditions the City may require? CUESTJONAMIENTO ELECTORAL NOR 4 MEDIANTE EL CUAL SEAUTORJZA EL ARRENDAMIENTO DE 77ERRAS ALTAS Y SUMERGfD)tS PERTENECJENTES A LA CIUDAD DE MIAMJ EN LA ISLA WATSON, POR UN PERIOD() DE 45 AROS .&Debera la Ciudad arrendar tierra perteneciente a la Ciudad qua consiste en un total de 24.2 aores de Herres altes y surnergidss en to Isla Watson a la compafia Flagstone ProperfJes, .LC_ por un periodo do 45 silos con dos periodos de renovacidn de 15 afros cada uno, sujeto a una inversion de capital, y sujeto a un afquiler anual minim° garantizedo de $2,000,000 y ofras condiciones gue la Ciudad puede estipular, a fin de quo este compariia Ifeve a cabo el foment° y desarrollo de cliches tierras con una mega marina, o fondeadero pare yates, una pescaderia, hotetes con unidades de condominio a tiempo compartido, un museo marftlrrio, Jardfnes pabflcos, instalaciones culturales, restaurantes, tiendas, e lnstafaciones de apoyo? KESYON NO. 1 SOU BILTEN DE VOi- i414i"Qi26Z>"AcNSANM AK TE Ki A BA DLO iPOU YON PI RYOD DE 45 AN KAWO TE PLk " Eske Vi le gendwa lwe pwopriyete ki konpoze de yon total de 24.2 kawo to plat ansanm •ak to ki anba dlo sou pwopriyete depi Watson Island jiska Flagstone, ak yon koporasyon ki gen responsabilite limite, pou devlope yon kokenn chenn Marina pou Yacht, mache pwason, otel ansanm ak yon seri de pwopriyete pou pataje, yon mize rnaritim, jaden piblik, sant kiitirel, restoran, magazen ak tout sant dapui yo pou.yon peryod de 45 an ak de renouvelman de 15 an si envestisman kapital 1a pemet ii e pouvi ke genyen yon twaye minirnbrn gasanti de $2,000,000 ansanm ak tout let kondisyon vil la to mande? IYES I SJ I WI 1272 NO J NO J NON 273 7 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Ballot Question it 1 Watson Island Development Is/and Gardens by Flagstone Properties, LLC Manna Accessible to the public during the clay • Overr43 slips and 7,000 linear feet of dockage • To be rated a "6-Gold Anchor"Marina-Facility. _ The City of Miami requested proposals for the redevelopment of the existing 13.4-acre Watson )stand Marina and the adjacent 10.8-acres of undeveloped larld into a world Mass marina and mixed use water- front development to emphasize diverse and public open spaces, pedestrian activity, and offer a wel- coming mix of uses to residents and visitors. After a competitive process, the City Commission chose flagstone Prdperties, LLO to create a mixed -use development on Watson island. The development features a fish market, marina facilities, public gardens, a maritime gallery, two hotels, as many as 14 restaurants, and retail shops - Island Garden§. Flagstone will invest $281 million In the project. No public funds are involved. Details of the Fiadstene prdposal include: Job Creation • Approximately 5,000 construction jobs during two year construction period • Approximately 2,500 permanent jobs will be created • Will create a Skills Training Center and an Employment Career Center • Will enter into a "First Source" Hiring Agreement to Hire City of Miarni residents Parks • 50°4 of the minimum base rent paid to the City will be set aside for development and programming. of ._. parks throughout the City • Approximately 7-acres on the south side of the island parallel to Government Gut has been desighated to remain as a public park Public Amenities and cultural Arts : . • Approximately 60% of the upland is accessible for�piablic use ® Partnerships with Fairchild Tropical Gardens and flIstorlcal;l ssociafion of South Florida• • Festival terrace programmed,�.or annual eyeMMts,..;''�' .. "t Fish Market • Open air with retail and diriiii�r�: • 250 standard rooms with 50 time-shared Iicr}seci•sirites,,2grie$'; a, ResfaurantslRetail • Asany•as 14 restaurants varying in menq •-'Intemetional mix of retail shops not currently. in • htegot at"#n itii e?cis, ing-fish nrarket operators to reelocate their•..operations into new fadiliiie_s Hotels • -- ; „• ;r _ x - • Wave'Hotel -' perated by,Cdnrad,: ad, ivrsipn of-t-6iitpn "` _ 17fx rovrns v- f ff.5t:,#irtr :sj 4e.j.icensed suites; 1'.6 stones••, %igFri6•ioue l=TotalOperated by the t�egerii. Croup - Return to ltte City , .: • $1 million, per' year for construction rent ,. - P • $2 miilion,per; ear as-gua senteed minirirti , s4 ran 1 f® of gross re'Dernie•fforn project coni "..nents and. s 4 '..per y, ,�-,ems _�°�. For more information: 6:og'b tii�wvrtsrl' a ci.rrriamr t s http:Ifwww.ci' itri fl: Tune into City of Miami `feieviaid (q 9) Liar't(0,Q AM arrd ='11 Phil; 4*- Call= Ballot Hotline: (305) 579-6493 %,., .�.,.-'•T . R�" ' ::•: Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Page 1 of 2 From: Torre, Henry Sent: Monday, May 06, 2013 1:52 PM To: Leftheris, James (James.Leftheris@dep.state.fLus) Cc: Bravo, Alice Subject: _ City of Miami 2001 Referendum Attachments: Ballot Question.pdf James, Attached is the information you requested on the Flagstone referendum. Please let me know if you have further questions. Thanks. Enrique (Henry) Torre Director City of Miami Public Facilities Division /Asset Management Division 444 SW 2nd Avenue, 3rd Floor Miami, FL 33130 Phone: (305) 416-1458 Facsimile: (305) 416-2156 E-mail: htorrePmiamigov.com From: Bravo, Alice Sent: Friday, May 03, 2013 4:17 PM To: Torre, Henry Subject: Fwd: City of Miami 2001 Referendum See below. Thx Sent on the go from my iPhonel Forgive any spelling mistakes! Begin forwarded message: From: "Leftheris, Jame? <James.Leftheris@dep.state.fl.us> Date: May 3, 2013, 4:12:56 PM EDT To: "abravo@miamigov.com" <abravo@miamigov.com> Cc: "Campanile, Nick" <Nick.Campanlle@dep.state.fl.us>, "Karter, Marjorie" <Mariorie.Karter@dep.state.fl.us>, "Shoaf, Bryan" <Bryan.Shoaf@dep.state.fi.us>, "Courson, Clay M." <Clay.Courson@dep.state.fl.us> Subject: City of Miami 2001 Referendum Alice, This is in follow-up to our telephone conversation yesterday concerning proposed projects on Watson Island and the Miami Herald parcel. file)/dk-sbs 1 /users/sdubbin/Herbits2013/Henry%20Torres%20Response%20to%20 State%... 8/21/2014 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Page 2 of 2 I was not sure if Mr. Torrey had my correct email address since I have not received a copy of the 2001 Referendum that Mr. Torrey was going to email us for our review. Thanks Jim Leftheris Division of State Lands (850) 245-2555 Please take a few minutes to share your comments on the service you received from the department by licking on this link. DEP Customer Survey. file//dk-sbsl/users/sdubbin/Herbits2013/Henry%20Torres%20Response%20to%2OState%... 8/21/2014 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk CITY OF iYIIAIMII OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Johnny Martinez, City Manager Alice Bravo, Assistant City Manager IIROM: Robin J. Jackson, Assistant City Attorney ��� DATE: July 25, 2012 RE: Flagstone Island Gardens Project on Watson Island Proposed Second Amended and Restated Partial Modification of Restrictions to Deed No. 19447-G QUESTION PRESENTED: You have asked whether changes to the City's financial provisions from those in an earlier Amended and Restated State Partial Waiver would result in violations of the City's Charter, Referendum, or other applicable legal provisions related to the Flagstone Island Gardens Project (the `Flagstone Project") on Watson island, if such changes are detrimental to the City. ERIJEF FACTUAL BACKGROUND: As of September 15, 2011, the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida ("Board of Trustees"), the City of Miami ("City'), and Flagstone Island Gardens, LLC ("Flagstone") entered into an Amended and Restated Partial Modification of Restrictions to Deed No. 19447-F ("Amended and Restated State Partial Waiver") in connection with property on Watson Island (the "Property") deeded in 1949 to the City as owner by the Board of Trustees. • The .Mended and Restated State Partial Waiver complies with the City's Charter provisions regarding the Request For Proposals ("RFP") for the lease of the Property, Flagstone's Response, and the required November 6, 2001 Referendum (the "Referendum"). Due to a tenbnical default by Flagstone, but not by the City, the Board of Trustees terminated the Amended and Restated State Partial Waiver effective January 17, 2012, and Flagstone is in the proceRses of curing its default to the Board of Trustees. Because of its cure efforts, Flagstone is not in default to the City under its other agreements with the City. At the request of Flagstone, the Board of Trustees and the City are considering a proposed Second Amended and Restated Partial Modification of Restrictions to Deed No. 19447-G ("Second Amendment'). Rjj328256 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk ANSWER: Any changes which_ - (a) diminish the financial return to the City under, (b) cause a substantial increase in the City's commitment of fimds regarding, or (c) result in any other material alteration of the City's award of the Project under Charter Section 29-C would cause a violation under City Charter Section 29-A(c) "Safeguards". Accordingly, any such changes would authorize the City Commission to terminate the award after a public hearing. Additionally, the termination provisions of City Charter Section 29-A(c) "Safeguards" would apply to any changes which would diminish the financial -returns to the City set forth in the ballot education materials and the Referendum Ianguage requiring, with no public fluids involved, realms to the City of (a) $1 million per year for construction rent, (b) $2 million per year as guaranteed minimum base rent when the Flagstone Project opens, (c) 1% of gross revenues from the Flagstone Project components, and (d) 2.5% from timeshare license sales. Accordingly, any changes which would diminish the financial returns to the City would violate the Referendum. In addition to required compliance with the Referendum, the Flagstone Project still (a) must comply with the City's RFP and Flagstone's original Proposal, and (b) must not diminish the financial returns to the City contemplated by the City's RFP and Flagstone's original Proposal. Flagstone has also previously certified to the City and agreed in the Flagstone Proposal to comply with the requirements of the City's RFP, as set forth in pages 14 through 24 thereof, which affirmatively state that the City shall not be responsible for any costs, fees, expenses, or commitment of funds for the Flagstone Project, including but not limited to the costs, fees, expenses of any and all regulatory approvals, governmental assessments, taxes, and other governmental impositions. cc: . Julie 4. Bru, City Attorney Maria J. Chiaro, Deputy City Attorney Attachments: Amended and Restated State Partial Waiver, dated September 15, 2011 City Charter Sections 29-A and Chapter 29-C Ballot Education T anguage and Referendum Language RFP pages' 14 through 24 Flagstone's certification to the City from its Proposal Rjj328256 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk MI MIAMI QUESTIONS 1 PROPUESTAS DE MIAMI BALLOT QUESTION -NO.1 AUTHORIZING 45 YEAR LEASE OF CITY OWNED UPLANDISUBMERGED LAND ON WATSON ISLAND Shall the City lease City -owned land consisting of 24.2 total upland and subge marina, son Watson Island fo Flagstone Properties, LLC, for development of a mega yacht market, hotels with timeshare units, a maritime museum, public gardens, cultural facilities, capitarestaurants, estme tasubjecttto a facilities, minimumfor an annual guaranteed rent of $2,000,000 and other capital env I conditions the City may require? CUESTJONAMIENTO ELECTORAL NOR 1 MEDIANTE EL CUAL SEAUTORJZA EL. ARRENDAMIENTO DE TIERRAS ALTAS Y SUMERG1DAS PERTEN C!�R UN PERA CIUDACO D,±D4DE E MIAMI EN LA ISLA WATSON, PacS es d !a Ciudad airyndar tien-aergid s en la I l t Watsonla , ad lad que consist° en un compete Flagstone Properties, l de 24_2 acres de ticn'as alias y sumergldas LLC_ par un periodo de 45 ailos con dos periodos de renovacibn de 15 alias cada uno, sujeto a una ihversian de capital, y sujeto a un alguiler antral miniino garantizado de $2,000,000 y ofras conditions que la Ciudad puede estipular, a fin de que este compaI is ileve a cabo el foment° y desanmllo de cliches tieras con una mega marina, o fondeadero pars Yates, una , jardeesapablllcos,conInstaac onesec lturates,orestaurantes,mU ndas ve museo marlUrrio, lardlnss p instalaciones de apoyo? KESYON NO. 1 SOU BILTEN DE V©T Kl OTORIZE ANSANM AK T1* KI A BA DLOIPOU YON PERYOD DE 45 N i PLAT Eske Vr1 la gendwa iwe pwopriyete ki konpoze de yon total de 24.2 kawo to plat ansanm -ak to ki anba dlo sou pwopriyete depi Watson island jiska Flagstone, ak yon koporasyon ki gen responsabilite limits, you deviope you kokenn chenn Marina pou Yacht, rnache pwason, otel ansanrn ak yon seri de pwopriyete pou pataje, yon mize rnaritim, jaden pibiik, sant kiltirel, restoran. magazen ak tout sant dapui yo pou yon peryod de 45 an ak de renouveiman de 15 an si envestisman kapital la pemet n e pouvl ke genyen yon iwaye minimbm garanti de $2,000,000 ansanrn ak tout lot kondisyon vii la to mande? YES /SVI WI 272 NO l NO I NON 273 7 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk 11 Ballot Question # 1 Watson Island Development .Island Gardens by Ffags"tone Properties, LLC The City of Miami requested proposals for the redevelopment of the existing 13.4-acre Watson island Marina and the adjacent 10.8-acres of undeveloped land into a world Klass marina and mixed use water- front development to emphasize diverse and public open spaces, pedestrian activity, and offer a wel- coming mix of uses to residents and visitors. After a competitive process, the City Commission chose Flagstone Prdperties, LLC to create a mixed -use development on Watson Island. The development features a fish market, marina facilities, public gardens, a maritime gallery, two hotels, as many as 14 restaurants, and retail shops - Island Garden?;. Flagstone will invest $281 million In the project No public furn15 are involved Details of the Flagstone proposal include: Job Creation • Approximately 5,000 construction jobs during two year construction period • Approximately 2,500 permanent jobs will be created • Will create a Skills Training Center and an Employment Career Center • Will enter into a "First Source" Hiring Agreement to iilre City of Miami residents Parks • 50% of the minimum base rent paid to the City will be set aside for development and programrning of parks throughout the City - • Approximately 7-acres on the south side of the island parallel to Government Cut has been designated to remain as a public park Public Amenities and Cultural Arts ' • Approximately 60% of the upland is accessible teft*.rblic use .. • Partnerships with Fairchild Tropical Gardens and el storical:Associaffon of South Florida • Festival terrace programmed .or annual syerlts S4:. '"' _ Marina • Accessible to the public during the day • Over 48 slips and 7,000 linear feet of dockage • To be rated a "5-Gold Anchor" MarinaFacility- .. • arm.. • •r Fish Market '"•~ • t'" a•t " s: • Open air with retail and dining; - • ` • Negot(2rti9g rui i existi'rfefish market operators to relboatetheir..operations into new fadilit!e -' • Wav "�f=lotel - ®peratect by Conrad as division of Hilton - 175 roarrrs tin.-5f iir - ,hare>,lice»serldsuites; Z.i; stones — • Lighttioube Kota} - Operated by the Regent. Group ;_ - (t`,...,. ; •. 260 standard rooms with 50 time-shared licerjsed:snites,22 0 ;•yea Restairranfs/Retail ;<= •T •• ' -.v.....„ 4.- • • AsA 'iany as 14 restaurants varying in merry ricer ' - ='international mix of retail shops not currently a Return to e City • $1 million per year for construction rend � • $2 million;pk ear asgiaa enteed minir3�tu3'r_{fA • 1 % of gross reirerme trdm project COrn' a nen€s and .�'r ••' 1 Fes.— •C. _^�•+ For more information: Logue't&.sc ►inrvtr ci.miami. �iis http:%/www c1 4nLfl Tune into City of Miarni televisir -(C 9) bet »_ Q,�AM anr€T'11 PM; fir .Cali= Ballot Hotline: (305) 579-6493 •°�" a.w 1 7ro�`'.� .sue ''�'€r -43 . • • • . lea oPep 4 rn timeshare lice 5 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk J-01-873 9/17/0? i RESOLUTION A RESOLUTION OF THE DJ4I CITY COMMISSION APPROVING THE. CITY MANAGER'S RECOMMENDATION AND ACCEPTING THE PROPOSAL SUBMITTED SY FLAGSTONE PROPERTIES, LLC ("PROPOSER"), FOR THE' UNIFIED DEVELOPMENT OP A MEGA YACHT MARINA AND MARINE FACILITIES THAT WILL ACCOMMODATE VESSELS EIGHTY (80) FEET AND LARGER, A FISH MARKET, .HOTELS WITH TIMESHARE UNITS,- CULTURAL AND EDUCATIONAL 'FACILITIES INCLUCING A MARITIME MUSEUM_ AND PUBLIC GARDENS, RESTAURANTS, RETAIL, AND SUPPORT FACILITIES SDtH -AS OFFICE .AND PARKING ON APPROXIMATELY. 10.8 ACRES OF CITY -OWNED WATERFRONT PROPERTY LOCATED ON WATSON ISLAND AND 13.4 ACRES OF ADJACENT SUBMERGED LAND; AUTHORIZING AND DIRECTING THE CITY -MANAGER TO -NEGOTIATE A LEASE AGREEMENT, IN A FORM. ACCEPTABLE. TO THE CITY ATTORNEY, WITH SAID PROPOSER, TO BE IN COMPLIANCE WITH APPLICABLE CITY CHARTER AND CODE PROVISIONS, SUBJECT TO FINAL APPROVAL OF. THE CITY COMMISSION AND TO INCLUDE CERTAIN TERMS AND CONDITIONS MORE PARTICULARLY DESCRIBED HEREIN; FURTHER PROVIDING' THAT THE HEREIN SELECTION OF THE SUCCESSFUL PROPOSER DOES. NOT CuNFEk ANY CONTRACTUAL RIGHTS UPON SAID PROPOSER UNLESS AND UNTIL THERE .HAS BEEN A FAVORABLE VOTE BY THE ELECTORATE AS REQUIRED BY CITY CHARTER SECTION 29-C AND. THE PROPOSED AGREEMENT HAS BEEN EXECUTED BY THE CITY OP MIAMI; FURTHER PROVIDING THAT IN THE EVENT -AN AGREEMENT WHICH .IS FAIR AND REASONABLE TO THE CITY CANNOT SE REACHED, THE CITY MANAGER MAY DISCONTINUE NEGOTIATIONS AND P135 SELECTION PROCESS SHALL TERMINATE WITHOUT FINANCIAL OR LEGAL LIABILITY TO THE CITY. Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk • WHEREAS,' the City Charter and Code provide for Unified Development Projects („UDPsa) for improvements to real property owned or co be acquired by: the -City, such UDPs to seek an integrated package of planning, design, construction, leasing and management services from the private sector;. and WHEREAS, pursuant to Resolution No. 00-1081, adopted . December 14, 2000, the City Commission authorized -the• issuance of a Request for Proposals ("RFP") on February 1, 2001, for the development of a marina and marine facilities that will accommodate vessels eighty (80) feet and larger, recreational, entertainment, educational andfor, cultural • facilities, an entertainment- destination, convention and/or conferencing facilities, hotel and ancillary uses such as office and parking on Watson island, as previously designated UDP; and WHEREAS, the City Commission, pursuant to - Motion No. 01-435, adopted at a public hearing on May 10, 2001, amended the RFP to include the development of a fish market. .as a required use on Watson Island; and WHEREAS, the City Commission, pursuant to Resolution 'Noe. 00-1081 and 01-503, duly appointed members to a Review Committee, as recommended by the City Manager, to evaluate proposals received in response to the RFP; and WHEREAS, the City Commission, pursuant to Resolution Nos. 00-1081 and 01-SO4, selected the Certified Public Page 2 of 6 01- 071 • Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Accounting ("CPA") firm of Pricew4terhouseCoopers, LLC, working in conjunction with Grau & Company, P.A.,' to evaluate proposal submissions; and . WHEREAS, the City received- three proposals on July" 16, 2©4i, in response to the RFP; and. WHEREAS, said CPA firni. analyzed the proposals based on the evaluation _criteria set forth in the RPP and:rendered a written report , to. the City Manager; • and WHEREAS, the Review Committee evaluated the proposals in accordance with the evaluation criteria set forth in the RFP and rendered a written report to the'City Manager of -its findings; and WHEREAS, the City Manager, taking into consideration the reports of the CPA firm and the Review Committee, recommends the acceptance of the proposal pubmi.tted. bar the Proposer; and WHEREAS, .the City Manager has transmitted to the .City Commission his recommendation and has included written reports from the aforementioned CPA firm and Review Committee; and . WHEREAS, the above actions and .procedures have been performed in accordance with applicable City Charter and Code provisions, par:,icu1arly those pertaining to 'OAPs as delineated in Charter Section 29-A(c) and City Code Section 18-87. • NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Page 3 of 6 )1- 971 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in.this Section. Section 2. • The City Manager's recommendation is approved and the proposal submitted by Flagstone Properties, LLC, is accepted for the unified development of a mega yacht marina and .marine facilities that will accommodate vessels eighty (80) feet and larger, a fish market, hotels with timeshare units, cultural and educational facilities including a maritime museum and publ.;_c aardens, restaurants, retail, and support facilities such as office and parking on approximately 10.8 acres of City -awned waterfront property located on Watson Island and 13,4 acres of adjacent submerged land. Section 3. The City Manager is authorized' and directed to negotiate a lease agreement, in a form acceptable to the City Attorney, with said Proposer, to be in compliance with applicable City Charter. and Code provisions, subject to final approval of c'e City Commission and to include, without limitation, the following provisions: (a) The term of the lease shall not exceed 45 years with two 15-year renewal options. The herein authorization is further subject to compliance with all = requirements that may be impoaed by the city Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. Page 4 of 6 0 1 - 971 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk fb) The successful proposer shall pay the City an amount not less than $2,000,000 as• the minimum annual guaranteed base rent, which may be adjusted annually subject to Consumer Price Index increases over the. lease term, and one percent (1%) of gross receipts from all project components after three years plus 2.5% of gross receipts from fractional unit license sales. (c) The successful proposer shall be responsible to construct improvements to - the property with minimum total costs of $281,000,000 as specified in its proposal and pursuant to the provisions of the 1'P. Section 4. The herein selection of the Proposer, does not confer any contractual rights upon said Proposer unless and until there has been a favorable vote by the electorate as required by City Charter Section 29-C and the proposed agreement has been executed by the City of Miami.• - Section 5. The Proposer agrees to forgo any legal or equitable rights related to .the UDP unless and until. the City and the Proposer enter into a fully executed agreement for the development of Watson Island as described in the UDP. Section 6. In the event- that an agreemeent, which is fair and reasonable to the City, cannot be reached with the Proposer,' the City Manager is authorized to discontinue•. negotiations and the selection process for the UDP shall terminate without financial -or legal liability to the City. Page 5 of 6 01- 97i Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk Section 7. This Resolution shall, become 'effective immediately upon its adoption and signature of the _Mayor .�' • PASSED AND ADOPTED this 17th day of September , 2001. JOE CARow. o,. MAYOR In accordance with Mism: Cod: Sec. 2.36, since the Mayor did not indicate appcov f of this legislation by signing in tM designated piano provided. said legislation now becomes effective w:lh the elapse of ten 00) days from the date of commission action t 3garctina samo, without the Mayor exercising a vote. ATTEST: WALTER J . FOEMAN CITY CLERK 44 wa 1 er J . !Foemun, City Clerk APPROVED . AS TO tqAM AND CORRECTNESS: ILARELLO ATTORNEY W5705:BSS :ELF Xf the Mayor does .not sign this Resolution, it shall become effective et the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, It shall become effective -immediately upon override of the veto by the City Commission. Page 6 of 6 01- 971 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk 1 Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk A art OF MCI DEVELOPMENT OPPORTUNITY Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk MEGA YACHT MARINA AND MIXED USE WATERFRONT DEVELOPMENT OPPORTUNITY WATSON ISLAND MIAMI, FLORIDA REQUEST FOR PROPOSALS FEBRUARY 2001 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk CITY OF MIAMI COMMISSION Joe Carollo, Mayor Wi(redo'Willy" Gorf, Vice -Chairman Tomas Regaledo, Commissioner Joe Sanchez, Commissioner Arthur E. Teele, Jr., Commissioner Johnny L. Winton, Commissioner Carlos A. Gimenez, City Manager City of Miami Department of Real Estate and Economic Development Produced by the City of Miami General Services Administration Graphic Reproduction Division Carlos A. Gimenez City Manocler CITY OF MIAMI Deperlmenl of Real Estate & Economic Dere:opmenl Submitted into the public • record for item(s) CA.7 on 04 28 2016, City Clerk February, 2001 Ladies and Gentlemen: Thank you for your interest in the Watson Island Mega Yacht Marina and Mixed Use devel- opment Site. The site is comprised of approximately 10.8 acres of City -owned, waterfront property and approximately 13.4 acres of adjacent bay bottom land located on the Northwest Quadrant of Watson Island, Miami, Florida. The City of Miami, through this offering, is seeking an integrated package of services from the private sector consisting of planning and design, construction, leasing, and management of the proposed marina and mixed -use com- mercial development. The City of Miami's Request for Proposals (RFP) contains detailed information regarding the parcel of land available for development, the uses the City is seeking, development and disposition considerations, submission requirements, and selection procedures pertinent to this project. Please carefully review all of the enclosed documents. Proposals must comply with all sub- mission requirements detailed in the RFP to be eligible for consideration. All information and material submitted will be thoroughly analyzed and independently verified. Proposals must present a definitive development program, completion schedule, financial plan, and management plan responding to all requirements of the RFP to form the basis for selection by the City. The City will conduct a Proposal Pre -Submission Conference at 10:00 a.m. on Tuesday, March 6th, 2001. While attendance at the Pre -Submission Conference is optional, all prospective developers are invited and encouraged to attend. Information on the location of the conference will be provided by mail to registered respondents. Proposals are due no later than June 20th, 2001, by 5:00 p.m. and must be delivered to the City of Miami Clerk's Office. A list of respondents will be made public the following day. The successful proposal will be subject to the requirements of Miami City Charter Section 29-C, which states that any subsequent lease of the subject property shall be approved by a majority of the votes cast by the electorate at a public referendum to be held at the next reg- ularly scheduled general election, anticipated to be November 6th, 2001. The City of Miami welcomes responsive development proposals and looks forward to work- ing with a development team to realize the unparalleled development opportunity offered on Watson Island. Sincerely, Carlos A. Gimenez City Manager 1 ' F� 3,41130 i•ai. aos. TERMS AND CONDITIONS OF OFFERHIG City's Commitment of Funds, Services The City's participation in the proposed development is limited to a long-term lease of the property. It is anticipated that the City shall not provide any funds or financing for the development contemplated by this RFP except as otherwise stated herein. The selected developer shall be required to provide all financing for the construction of improvements and operating expenses, to make lease payments that provide at least fair market value to the City, and to provide deposits or surety to guarantee required performance and payments. City's Commitment of Property The property and its improvements are offered "as is, where is" by the City for development and long term management. No representations or warranties whatsoever are made as to its condition, state or characteristics. Expressed warranties and implied warranties of fitness for a particular purpose or use and habitability are hereby disclaimed_ Existing improvements and facilities located on the property are not required to be retained as a part of the pro- posed redevelopment of the site. Testing, audits, appraisals, inspections, or other non- invasive testing that is necessary or desired to sub- mit a proposal, shall be at the sole expense of the prospective respondent. Reports regarding the property that the City may have in its possession are available as public records without representation or warranty. City -owned property is held in public trust and can- not be mortgaged, pledged, liened or subordinated in any way as a part of the lease agreement; how- ever, the leasehold interest may be mortgaged. All leasehold improvements shall become the sole prop - Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk erty of the City upon the expiration of the lease agreement. Substantial Increase In addition to any other right of termination avail- able, any substantial increase in the City's commit- ment of funds, property, or services, or any other material alteration of any contract awarded for a Unified Development Project shall entitle the City Commission to terminate any contract including the lease after a public hearing. Prior to such public hearing, the Commission shall seek and obtain a report from the City Manager and from the Review Committee that evaluated the proposals for said project, concerning the advisability of the City exer- cising its right. The City shall have no liability with regard to its exercise of said right and the selected respondent shall bear all of its own costs with respect thereto. As stipulated in Subsection (e)(4) of Charter Section 29-Afc), "substantial increase" shall be defined as a 10% or more increase to the City's proposed com- mitment of funds, property and/or services, and "material alteration" shall be defined as a failure to comply with all aspects of the proposal except as may be specifically permitted in writing by the City Manager. Fair Market Value In accordance with Miami City Charter Section 29- 13, the lease must provide the City with at least fair market value. Proposals shall include sufficient analyses of revenues, operating expenses and development costs to justify the proposed lease payments which must provide the City with at least "Fair Market Value" based upon the proposed project. Each respondent shall specifically state in its proposal that it agrees that annual lease payments shall meet fair market value, if its proposal is accepted by the City. 20 Watson Island Request for Proposals Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Submitted into the public record for item(s) CA.7 on O4 28 2016, City Clerk FINANCI A L F E. A 5 I FINANCIAL FEASIBILITY Ix. A.PfOJKFOYEW!FW While detailed floor plans depicting the retail and restaurant components of Island Gardens are stilt in the design stages, our description contained herein is meant to provide a foundation for understanding the quality of the space and ultimately the types of hotel operation, retail and restaurant tenants Flagstone Piokn.rties is attracting to the project, The description is also necessary for understanding the market economics and ultimately the financial feasibility of the separate components of the island Gardens project_ It is imperative to understand tbar each component of Island Gardens has been considered both individually and within the context of the larger muted -use project. Although the synergy created by a project as dynamic as tsland Gatdetns is critical, it is just as important for the success of each component to be self sufficient and economically viable - The e island Gardens Mega -Yacht Marina will provide an inviting basin and destination for the maneuvering and docking of the great ocean liners. Flagstone Properties will provide one of the finest mega -yacht marinas in the world benehmarked against the international standards set up by the Yacht Harbour Association of London The Maritsa will provide berthing for 54 mega -yachts offering all amenities and services of a 5 gold - anchor marina. The lodging component for the Island Gardens development will include a 225-room five-star hotel with a linear orientation, and a 300-roorn five-star property with a vertical orientation, both catering to upscale leisure and corporate travelers. More than location, the integrated development of Island Gardens will provide one of the most highly integrated resort hotel developments anywhere in the world. Each hotel is designed to appeal to a specific market segment prot-tding clear alternatives to the Miami market. Please refer to the Project Site Plan, preceding this section of the proposal, for a visual representation of the configuration and location of the retail space within Island Gardens. The retail improvements will consist of a two-story space overlooking and adjacent to the entertainment component of the pcoject. The improvements will contain several uniquely configured bays of varying sizes, designed to accommodate a number of tenants. The buildings arc considered highly irregular in configuration, by current standards, but typical of exclusive shops found in many intemational destinations. Again, please refer to the Project Site Plan, preceding this section of the proposal, for a visual representation of to configuration and location of the retail space within Island Grirdets. The restaurants will consist of several single -story pods strategically integrated within the development to maximize exposure and views of the surrounding downtown skyline, harbor and mega -yacht manna, while providing efficient use of the space. As is the case with the retail component,. the restaurants will each be uniquely designed with varying configurations and themes. Several will have glass roofs enhancing the garden feel of the project and welcoming the outdoors into distinctive eateries. I 5 L A H D G A tt D E N S Lt-t Submitted into the public , record for item(s) CA.7 on 04/28/2016, City Clerk FINANCIA L F E A S t 4 I L 1 T y Approximately 60% of the present vahic is attributed to the annual cash flows, with about 40% attnbutcd to the future sale. This is considered to be an acceptable ratio under current investment parameters. A summary of our Discounted Cash Flaw Analysis appears within this section. �► FIntonsial Rwrurn to ilia Cry t S L A N G A J. D P N 5 044 1• Submitted into the public record for item(s) CA.7 on 04 28 2016, City Clerk Island Gardens, Miami, Florida Flagstone Properties, LLC Financial Return to the City Introduction: Flagstone Properties, LLC is pleased to respond to the City of Miami's request for proposal regarding a Mega Yacht Marina and mixed -use development on Watson Island, Miami, Florida It is the commitment of Flagstone Properties, LLC to adhere to the City Charter requirement for compensation equal to fair market value. Tenant; Flagstone Properties, LLC Size: Approximately 10.8 acres of upland and 13.4 acres of adjacent submerged land. Lease Term: 45-year initial term and two 157year renewable terms. Rental Rate: - No lease payment through public referendum and through development permitting and approval process. Current estimate for this period of time is 14 months. - Fixed guaranteed minimum annual rental payment of $1,000,000 per year, paid monthly, upon issuance of building permit and start of construction, through the receipt of Final Certificate of Occupancy. Current estimate for this period of time is 24 months. - Fixed guaranteed minimum annual rental payment of S2,000,000 per year, paid monthly, shall commence upon receipt of Final Certificate of Occupancy. This rental payment shall last the entire term(s) of the Iease and shall have an annual escalation tied to the Consumer Price Index (CPX), - At the start of the 4th year of occupancy, a 1% of Gross Revenue payment shall commence and continue throughout the term(s) of the lease. This Gross Revenue payment shall be in addition to the fixed guaranteed minimum annual rental payment and shall be paid at the end of each year of operation. Payments_ _ See attached schedule outlining financial return to the City. .Tones Lang LaSalle Americas, Inc. Submitted into the public record for item(s) CA.7 on 04 28 2016 City Clerk 3 Submitted into the public record for item(s) CA.7 on 04/28/2016, City Clerk LEO& *WOW Fat Mitt:MARY 11' v atDE town; nOI1t . a U WESTERLY PFA LY WRSON F RIREO • • OP CLOWERC A( �Po/NT C fae C srATpu 2Si50 ON NE CENTERLINE 5$ i 12) 676013- 117 REFIT OF' MY JIPP S INeLArAT PACE 7T. of THE FORM RECORDS OF ava OADE OtTu rTY, ` PLORIDAt sa8lo10l FaF1 moot FEET To OE OFT Eastern' 'El THENCE Si9'32 SFAR rit of s& OF RzEIEONINlfRl ropl oil THE EASTERLY ems OF A T *NWo 1c H arr To AD CASIM •LATHS FAR BOUT FEET Ji'OSbO'W Awric MID µp NSTAL WATEIRMT MICE Alarm ti LY C C T won OFWAY We OF ova ! A.sANSW =MUNE FOR ATM FEET 111 AP 1 S. * PEEP, TNk m moo ruee Ta THE ARC OF stdi NORTH H4WR1C AW THCC OH POINON THE MT MT OF MY LIM 4 rCENno.l. MEE of r o'T4` For? NI ARC MANCE OF25d10 FEET TO A THENCE SO3'27'54•E MONO OARS EAST OF CFAILP 4A�TA1 510.zWAE 10 A Pow ON THE RIGHT OF PAWENT LWE FOR ES@.SJ FEET OFFlCML RECORDS SOOK 3522 A OF All oFTHEi UE 6 RECORDS C RDSEO IN F 751 OF THE -Gam FE1O T ROMme=0°0e SISTERLY LHtE Book23181/Page788 CFN#20050287972 Exhibit B Page 6 of 7 Amended and Restated Partial Modification of Restrictions Deed Restriction No. 19447 F • MIADOCS 5510952 2