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HomeMy WebLinkAboutSubmittal-Samuel J. Dubbin-Letter to Elected Officials RE Jungle Island Charter AmendmentLl 1 DUBBIN KRAVETZ VIA EMAIL Hon. Mayor Francis Suarez Hon. Chairman Keon Hardemon Hon. Vice Chairman Ken Russell Hon. Willy Gort, District One Hon. Joe Carollo, District Three Hon. Manolo Reyes, District Four Hon. Emilio Gonzalez, City Manager Hon. Victoria Mendez, City Attorney Hon. Todd B. Hannon, City Clerk Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk June 7, 2018 SAMUEL J. DUBBIN, P.A. DIRECT (305) 357-9004 sd ubbin ®dubbinkravetz.com Subject: City Commission Agenda Item #4102, Special Meeting for Proposed Referendum on Jungle Island Hotel Charter Amendment Schedule for June 8, 2018 Dear All: This firm represents 1000 Venetian Way Condominium Association, Inc. ("1000 Venetian.").1 We were recently informed that the City Commission would hold a special meeting this Friday, June 8, 2018, to consider a resolution to submit a proposed Charter amendment to the voters to authorize the City Commission" that would, among other actions, waive competitive bidding and approve a proposed Fifth Modification to the Lease with ESJ JI Leasehold, LLC ("ESJ" or "Lessee")("Fifth Modification") to extend the current lease term and authorize ESJ to build a hotel on Watson Island. The residents of 1000 Venetian urge the Commission to withdraw the item from consideration on June 8, because (1) the proposed referendum violates state law governing ballot clarity and accuracy; (2) the proposed Fifth Modification violates the City Charter by authorizing a lease of public land for less than Fair Market Value ("FMV"); and (3) the Lessee has violated its current contractual obligations under its existing Lease Agreement with the City by applying for permits forbidden by the lease, and failing to honor its obligation to mitigate the impact of leasehold improvements on adjacent neighborhoods. My clients urge the Commission to insist the ballot language and charter amendment comply with all applicable laws, and insist on complete accuracy and transparency, before voting to allow such a far-reaching referendum to be placed before the City's voters. i The 1000 Venetian Way Condominium is located on the Venetian Causeway, on Biscayne Island, approximately 1100 feet from the Jungle Island site, directly across the Intracoastal Waterway. ,A\niv\,\\r,),\ 50414 U\1,1\ — t 00 tk\S ).0\ \LA 1200 ANASTASIA AVENUE • SU 04 300 • CORAL GABLES, FLORIDA 33134 U A 1 j s„),,m4kei TELEPHONE (305) 371-4700 • FAX (305) 371-4701 Submitted into the public record for item(s) SP.2 on 06/08/2018 , City Clerk Hon. Mayor and City Commissioners June 7, 2018 Page 2 1. The Proposed Ballot Language is Misleading and Violates State Law. The proposed Lease amendment materially contradicts the Resolutions, the proposed Charter amendment language, and the proposed ballot summary, in violation of section 101.161(1), Florida Statutes. The operative proposed amendment incorporated into the Commission's published resolution, the Fifth Modification to the Lease with ESJ, proposes to extend an option to ESJ to build a hotel on the City's property, but expressly does not obligate ESJ to build a hotel. Moreover, even if ESJ "chooses" to build the hotel, it would have as long as 10 years before being obligated to pay any "additional rent" of $250,000, and as long as 13 years before the "additional rent" would increase to $1,250,000 (or 5% of gross sales). a. The Lease amendment gives ESJ sole discretion whether to build a hotel, which is not disclosed in the Resolution materials or the Ballot Language. Section 5(a) of the proposed Fifth Modification provides: 5. Development and Construction of Hotel. The Lease is hereby amended to ad the following provisions regarding the development and construction of the Hotel: (a) Lessee's Right to Construct & Maintain Hotel. The Lessee shall have the right, but not the obligation, at its own cost, an expense, to design, develop, construct, install, equip, operate, manage, sublease, rent an maintain the Hotel on the Subject Property.... (Emphasis supplied). This language giving the ESJ the sole, unilateral authority to decide whether or not to construct the Hotel is no accident. In an earlier draft, someone on the City staff attempted to strike the words "have the right, but not the obligation," which would have made construction of the Hotel mandatory. b. The Resolution materials also do not disclose that under the Lease agreement, there will be no "additional rent" unless ESJ decides to build a hotel, which could take as long as 10- 13 years. Similarly, the published City Resolution, Charter amendment, and Ballot Summary do not inform the public that ESJ's rent will not increase at all unless and until it chooses to build the hotel, for which it can wait 10 years. Paragraph 5(e) provides: (e) Development Schedule. In the event Lessee proceeds with the construction of the Hotel, Lessee will be required to (i) obtain a Master Building Permit ("Master Permit-) for the Hotel from the City within four (4) years of the Effective Date of this DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) SP.2 , on 06/08/2018 , City Clerk Hon. Mayor and City Commissioners June 7, 2018 Page 3 Modification, and (ii) receive a temporary certificate of occupancy ("TCO") for the Hotel within six (6) years of obtaining the Master Permit. Additionally, Paragraph 7 provides: 7. Hotel Annual Rent. Commencing on the date that the Hotel opens for business to the general public and on the first (1st) day of every calendar month thereafter until the Hotel Stabilization Date, Lessee shall pay, in addition to Minimum Annual Rent and Percentage Rent (both of which are not related to the Hotel and do not include Gross Revenue generated by the Hotel), Hotel Annual Base Rent to Lessor in the amount of Two Hundred Fifty Thousand Dollars ($250,000) per year, .... Beginning on the Hotel Stabilization Date and on the first (1'I) day of every calendar month thereafter, Less shall pay Hotel Annual Base Rent in the amount of One Million One Hundred Fifty Thousand Dollars ($1,150,000) per year ... . c. The advertised "contributions" to the Park improvements and for Low Income Housing are subject to ESJ's sole discretion, which is not disclosed. The current proposal also misleads the public about the widely touted "contributions" of $700,000 for the Ichimura-Miami Japanese Gardens and $500,000 for renovation of single family homes in blighted areas of the City. Nothing in the City's Resolution, the proposed Charter amendment to Section 29-B, or the Ballot Summary, discloses that ESJ is under no obligation to make these contributions unless it decides, in its sole discretion, to build the hotel. To the contrary, all included language suggests these contributions will be made if the electorate votes "yes" in the referendum, which is not true. The City's open-ended accommodations to ESJ are nowhere mentioned in the proposed Resolutions, the proposed amendment to the Charter, or the Ballot Summary. In fact, the only fair reading of the Resolutions, amendment, an ballot is that there will be a new privately funded hotel, with additional rent starting of $250,000 and increasing to $1,250,000, Lessee contributions of $700,000 to the Gardens and $500,000 for housing in blighted areas. The misleading Resolution language is part of Exhibit 1, page 3, as "A" and page 7, marked as "B." The misleading Charter amendment language is also part of Exhibit 1, page 10, and marked as d. The Ballot Summary is misleading and violates State law because it does not disclose that the hotel, rent, and contributions are solely within ESJ's control and may never occur. The 2 While there are a number of legal and policy reasons why the proposal should be rejected, but the illegality of the Resolution and Ballot Language alone present a threshold harrier to the City Commission considering the item on Friday. DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) SP.2 on 06/08/2018 , City Clerk Hon. Mayor and City Commissioners June 7, 2018 Page 4 ballot summary proposed in the Resolution misleads the voting public about the true effect of the actual Lease amendment being proposed by the City, in violation of State law, which requires ballot summaries to use "clear and unambiguous language" and disclose the "chief purpose" of the measure. According to the version of Item 4102 published on the City's agenda website Monday (June 4), the ballot summary would state: Shall Miami's Charter be amended extending Jungle Island's Lease for an additional 39-years, plus 15-year option, by waiving competitive bidding and allowing construction of a privately funded hotel and attractions with a maximum 130-foot height in exchange for: • Additional annual rent for the hotel of $250,000.00 increasing to $1,150,000.00 or 5.0% of hotel gross sales, whichever greater; • A contribution of $700,000.00 to the adjacent City park and $500,000.00 for low-income housing.3 Exhibit 1, page 12, marked as "D." When compared to the actual Lease amendment, this Ballot Summary is misleading under Section 101.161(1), Florida Statutes, which provides: (1) Whenever a constitutional amendment or other public measure is submitted to the vote of the people, a ballot summary of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word "yes" and also by the word "no" .... The ballot summary of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. According to the Third District Court of Appeal, the statutory requirements of "clear and unambiguous language" and disclosure of the "chief purpose" forbids precisely the kind of misleading summary found here: 3 Strangely, the Resolution on the City"s Agenda Website, "Item 4102" dated "05/02-2018," has different ballot language than the identically identified and titled Resolution provided to the undersigned in response to a May 30, 2018 public records request. See Exhibit 2. page 12. marked as "E.". However, the switch does not change the fundamentally misleading nature of the currently proposed ballot language. DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) SP.2 on 06/08/2018 , City Clerk Hon. Mayor and City Commissioners June 7, 2018 Page 5 The purpose of this requirement [in section 101.161(1)] is to provide the voter with fair notice of the content of the proposed measure so that he or she will not be misled as to its purpose and may intelligently cast his or her vote.... As stated by the Florida Supreme Court, the "ballot title and summary cannot either 'fly under false colors' or 'hide the ball' as to [its] true effect." City of Miami v. Stats, 919 So.2d 485, 487 (Fla. 3d DCA 2005) (citations omitted). When compared to the Lease language that is being incorporated in the Resolution, it is clear that the current ballot language is materially misleading. Its "true effect is different than its apparent effect;" it is "flying under false colors;" and it is "hiding the ball" as to its true effect. In Let Miami Beach Decide, Inc. v. City of Miami Beach, 120 So.3d 1282 (Fla. 3d DCA 2013), the Third District held: The focus of this case is whether the City framed the ballot questions in a manner that accurately communicates their true effect as required by section 101.161, Florida Statutes (2013). The apparent purpose of the lease approval question is to obtain voter approval of the lease as required by the Charter Provision. The lease approval question as written, however. does not fulfill this function. To approve a lease under the Charter Provision, the voters must be given notice of the material terms of the lease they are being asked to approve. Because the lease approval question fails to give voters this necessary information, by including such information or referring voters to records providing such information, it sloes not quralifv as a proper ballot question to obtain voter approval cif the lease. Because its true effect is different from its apparent effect, the lease approval question is confusing and violates the requirement of ballot clarity and accuracy established by section 101.161. For this reason, the lease approval question must be removed from the ballot. 120 So.3d at 1284. As in Let Miami Beach Deckle, the variations between the proposed ballot language and the actual Lease amendment that would result from an affirmative vote render the ballot illegal under section 101.161(1). The Proposed Lease Amendment Violates Section 29-B of the City Charter. The proposed Fifth Modification violates Section 29-B of the City Charter because it would approve a lease of land owned by the City on Watson Island to ESJ for less than Fair Market Value ("FMV"). Section 29-B provides: DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 Submitted into the public record for item(s) SP.2 , on 06/08/2018 , City Clerk Hon. Mayor and City Commissioners June 7, 2018 Page 6 Notwithstanding any provision to the contrary contained in this Charter or the City Code, and except as provided below, 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 sale or lease. The appraisal by Joseph Blake & Associates of the subject property, used as a hotel as its "highest and best use," concludes that fair market rent today is $1,410,000. But the actual Lease gives ESJ the sole option of waiting 10 years before the additional rent could increase from zero $250,000, and 3 extra years (for a total of 13) before it would reach $1,250,000. The "fair market rent" identified by the City's appraisers, applies TODAY, not in 5, 10, or 13 years as the Lessee has the right to wait under the Fifth Modification. The Blake appraisal itself states: No consideration is given for the construction period and any rent abatement during the construction period: not the lease -up or future stabilization of the income .streams from the various components. (Emphasis supplied). In other words, with the Fair Market Value of $1.41 million per year as today's Fair Market Value, the possibility' of receiving $250,000 in ten years, or $1,250,000 in 13 years, is not the same as actual payment of that sum today. (And, of course, $1,250,000 in 13 years is not the "same" as $1,410,000 million today.) A similar transaction involving an open-ended option where the charter required fair market value for any sale of public land, was held to violate that charter in Gunderson v. City of Fort Myers, 276 So.2d 529 (Fla. 2d DCA 1973). In Gunderson, the city charter provided that "no [public] property shall be sold for less than the full appraised value thereof." The court noted that "the record reveals no attempt to grapple with the question whether an immediate payment of cash will compensate the city fairly for agreeing to sell in the future at a price presently fixed." It concluded: "The city is, at a bare minimum, bound by its own charter ... . ["I']he circuit court should have enjoined the sale and declared the option contract beyond the city's power to enter on the basis of the appraisal rendered." 3. ESJ has failed to honor several provisions of the existing lease with the City designed to protect neighbors from adverse impacts of further development. a. Failure to conduct proper sound engineerin<a analysis. Contrary to the current Lease agreement, ESJ has not worked in good faith with the neighboring residents to mitigate the sound and light impact of future improvements. Section 7.2(a) of the current Lease. which ESJ assumed DUBBIN & KRAVETZ, LLP 1200 ANASTASIA AVENUE • SUITE 300 • CORAL GABLES, FLORIDA 33134 • TELEPHONE (305) 371-4700 all other rights; calling for a referendum special election and providing that Charter Amendment No._ will be submitted to the electorate at the referendum special election to be held on August 28, 2018; designating and appointing the City Clerk as the official representative of the City Commission with respect to the use of voter registration books and records; further directing the City Clerk to cause a certified copy of the herein Resolution to be delivered to the Supervisor of Elections of Miami -Dade County, Florida, not less than forty-five (45) days prior to the date of such special election; providing an immediate effective date for this Resolution. Background of Item: The City of Miami ("City") is the owner of that certain tract of land on Watson Island comprising approximately 19.35 acres and located at 1111 Parrot Jungle Trail ("Property"). ESJ JI Leasehold, LLC ("ESJ") and the City are parties to that certain Lease and Development Agreement, as modified from time to time (as so modified, collectively, "Lease") for the Property. Pursuant to the Lease, ESJ is leasing the Property from the City for the operation of a botanical garden and theme park attraction known as Jungle Island ("Jungle Island"). The Lease was modified pursuant to, the Third Modification to the Lease and Development Agreement ("Third Modification") which modified the Lease definition for "Additional Improvements" to possibly include a themed hotel and related retail and entertainment, thereby providing ESJ with the potential opportunity to develop and operate a hotel on the Property, subject to approval of the electorate in a Citywide referendum, and further subject to the approval of the State of Florida Board of Trustees of the Internal Improvement Trust Fund and any and all applicable laws, codes, and regulations, including, but not limited to, the City's Zoning Ordinance. ESJ desires to develop a hotel, parking structure, and related improvements (collectively, "Hotel") on the Property and requires an extension on the term of the Lease, which has approximately Forty Three (43) years remaining, to obtain the financing necessary for the construction of the Hotel. Chapter 29-C of the Charter of the City of Miami states that Notwithstanding any provision to the contrary contained in the Charter or Code of the City of Miami, no sale, conveyance, lease or management agreement may be entered into for the management, occupancy or use of the area known as Watson Island for periods greater than one year unless (1) there shall have been, prior to the date of the city commission's consideration of such sale, lease, management agreement, an advertisement soliciting proposals for said sale, lease or management agreement, published in a daily newspaper of general paid circulation in the city, allowing not less than ninety (90) days for the city's receipt of proposals from prospective purchasers or lessees, said advertisement to be no less than one-fourth page and the headline in the advertisement to be in a type no smaller than 18-point; and, (2) the proposed transaction be approved by a majority of the votes cast by the electorate at a referendum. The procedures for selection of proposals shall be those provided by Charter section 29-A(c) or (d) as appropriate and/or by applicable City Code provisions. Nothing herein shall affect the existing rights or privileges, if any, of any lessee, permittee, licensee or concessionaire currently situated in said area; however, any enlargement, amendment, transfer, or v U u 00 Psi) 00 O O c O increase in those rights or privileges as may be in existence at the time this amendment is adopted shall require compliance with the provisions of this amendment. This Charter Amendment shall not affect the city's use or occupancy of the area, nor shall it apply to contracts for the construction of any city facilities or improvements in the area; further, nothing contained herein shall apply to projects of any governmental agency or instrumentality. The City and ESJ desire to enter into both an Escrow Agreement ("Escrow") and the Fifth Modification ("Modification") to the Lease and Development Agreement ("Lease"), both in substantially the attached form, which will modify the current remaining lease term ("Term") of Forty Three (43) years and extend the Term from the year 2060 to the year 2099 and include a Fifteen (15) year option to extend the Lease to 2114; providing rent payment of the greater of One Million One Hundred Fifty Thousand Dollars ($1,150,000.00) or Five Percent (5.0%) of annual gross revenues from a new privately funded hotel development with a minimum cost of Fifty Million Dollars ($50,000,000.00) with a maximum height of One Hundred Thirty (130) feet and a design subject to City approval and successful zoning changes, with said rent being in addition to the currently received greater of annual rent of Five Hundred Two Thousand One Hundred Sixty Eight Dollars ($502,168.00) and percentage rent from Jungle Island revenue; providing parking spaces sufficient to meet zoning code requirements; further providing ancillary improvements consisting of retail, and/or restaurant space of up to Ten Thousand (10,000) square feet and meeting room space of up to Thirty Thousand (30,000) square feet; with the aggregate payment of Seven Hundred Thousand Dollars ($700,000.00) towards the Ichimura-Miami Japanese Gardens ("Japanese Gardens") for construction of a walkway to Jungle Island, necessary repairs and maintenance of the Japanese Gardens; payments totaling Five Hundred Thousand Dollars ($500,000.00) over a Ten (10) year period to be used for the renovation of historic single family homes in blighted areas of the City whose residents are of low economic means ; establishing a reserve account for capital repairs of Two Hundred Thousand Dollars ($200,000.00) per year; implementing a transfer fee of Three Percent (3%) of gross sales, less the outstanding principal balance of all debt owed by ESJ to an unaffiliated third party and transaction costs, if the Property is transferred or assigned; further implementing a refinancing fee of One Percent (1 %) of the refinancing loan proceeds, less all third party costs, expenses, amounts required to fully repay the debt being refinanced and all refinancing proceeds not disbursed to ESJ investors, should the Property be refinanced after the initial refinancing; a rent credit to ESJ in the amount of Five Hundred Thousand Dollars ($500,000.00) to be credited as reimbursements for costs related to shoreline stabilization and improvements needed as a result of erosion from hurricane damage in 2017. Pursuant to the Charter of the City ("Charter") Section 29-B, entitled "City Owned Property Sale or Lease -Generally" and Section 3(f)(iii), entitled "Powers," the City will need two (2) independent appraisals affirming the fair market value of the Agreement. The Agreement with ESJ will be subject to such other restrictions, reversions, and retention by the City of all other rights. Pursuant to Resolution No. , adopted on , the City Attorney was directed to draft the ballot language contained within the Resolution. Budget Impact Analysis 0 U L a V V CO 0 N CO 0 LO 0 Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk Item is Related to Revenue Item is NOT funded by Bonds Total Fiscal Impact: $250,000 per year after the hotel opens for business and continuing for the first 3 years then increasing to the greater of $1,150,000 or 5% of gross revenues. Account #04002.221100.448000 rents and royalties. Reviewed By Real Estate and Asset Management Aldo Bustamante Department Head Review Completed 05/02/2018 10:46 AM Office of Management and Budget Everton Garvis Budget Analyst Review Completed 05/02/2018 4:14 PM Office of Management and Budget Christopher M Rose Budget Review Completed 05/04/2018 12:28 PM City Manager's Office Fernando Casamayor Assistant City Manager Review Completed 05/14/2018 9:22 AM Legislative Division Valentin J Alvarez Legislative Division Review Completed 05/14/2018 3:49 PM City Manager's Office Nikolas Pascual City Manager Review Completed 05/29/2018 11:36 AM Office of the City Attomey Barnaby L. Min Deputy City Attorney Review Completed 05/31/2018 4:19 PM Office of the City Attorney Victoria Mendez Approved Form and Correctness Pending City Commission Todd B. Hannon Meeting Pending 06/08/2018 10:30 AM City of Miami Legislation Resolution City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 4102 Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), APPROVING, SETTING FORTH, AND SUBMITTING TO THE ELECTORATE A PROPOSED AMENDMENT TO THE CHARTER OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CHARTER"); SPECIFICALLY PROPOSING TO AMEND SECTION 29-B OF THE CHARTER, ENTITLED "CITY -OWNED PROPERTY SALE OR LEASE -GENERALLY", TO AUTHORIZE THE CITY COMMISSION, BY A FOUR -FIFTHS (4/5THS) AFFIRMATIVE VOTE, TO WAIVE COMPETITIVE BIDDING AND AUTHORIZE THE CITY MANAGER TO EXECUTE BOTH AN ESCROW AGREEMENT ("ESCROW') AND THE FIFTH MODIFICATION ("FIFTH MODIFICATION") TO THE LEASE AND DEVELOPMENT AGREEMENT ("LEASE") BETWEEN THE CITY OF MIAMI ("CITY") AND ESJ JI LEASEHOLD, LLC ("ESJ") FOR 19.35 ACRES OF CITY - OWNED WATERFRONT PROPERTY, AMENDING CERTAIN TERMS OF THE EXISTING LEASE INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING MATERIAL TERMS: ADDITIONAL IMPROVEMENTS ON THE 19.35 ACRES OF CITY -OWNED WATERFRONT PROPERTY; MODIFICATION TO THE CURRENT REMAINING LEASE TERM ("TERM") OF APPROXIMATELY FORTY THREE (43) YEARS AND EXTENDING THE TERM TO 2099, WITH AN ADDITIONAL OPTION OF FIFTEEN (15) YEARS TO EXTEND THE LEASE TO 2114; PAYMENT OF ADDITIONAL ANNUAL RENT OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) INCREASING, ONCE A PROPOSED HOTEL HAS STABILIZED, TO THE GREATER OF ONE MILLION ONE HUNDRED FIFTY THOUSAND DOLLARS ($1,150,000.00) OR FIVE PERCENT (5%) OF ANNUAL GROSS REVENUES FROM THE PROPOSED FIFTY MILLION DOLLAR ($50,000,000.00) HOTEL, WITH A ONE HUNDRED THIRTY (130) FOOT MAXIMUM HEIGHT, SUBJECT TO CITY APPROVALS AND SUCCESSFUL LAND USE AND ZONING CHANGES, AS NECESSARY; PROVIDING PARKING, RETAIURESTAURANT, AND MEETING ROOM SPACE; PROVIDING IMPROVEMENTS, REPAIRS, AND MAINTENANCE TO THE ICHIMURA-MIAMI JAPANESE GARDENS IN THE AMOUNT OF SEVEN HUNDRED THOUSAND DOLLARS ($700,000.00); PROVIDING A CONTRIBUTION OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00), PAID OVER A TEN (10) YEAR PERIOD, FOR LOW INCOME HOUSING RENOVATIONS IN BLIGHTED AREAS OF THE CITY; ESTABLISHING A REPAIR RESERVE ACCOUNT; IMPLEMENTING A THREE PERCENT (3%) TRANSFER FEE OF GROSS SALE PROCEEDS; IMPLEMENTING A REFINANCING FEE OF ONE PERCENT (1%) OF LOAN PROCEEDS; PROVIDING A RENT CREDIT TO ESJ IN THE AMOUNT OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) FOR REIMBURSEMENTS OF COSTS RELATED TO SHORELINE STABILIZATION AND IMPROVEMENTS NEEDED AS A RESULT OF EROSION FROM HURRICANE DAMAGE IN 2017; WITH RESTRICTIONS, REVERSIONS, AND RETENTION BY THE CITY OF ALL OTHER RIGHTS; CALLING FOR A SPECIAL ELECTION TO BE HELD ON AUGUST 28, 2018; DESIGNATING AND APPOINTING THE CITY CLERK AS THE OFFICIAL REPRESENTATIVE OF THE CITY COMMISSION WITH RESPECT TO THE USE OF VOTER REGISTRATION BOOKS AND RECORDS; FURTHER DIRECTING THE CITY CLERK TO CAUSE A CERTIFIED COPY OF 0. aa) v 0 Y a1 U CO 0 CO 4.0 c o THE HEREIN RESOLUTION TO BE DELIVERED TO THE SUPERVISOR OF ELECTIONS OF MIAMI-DADE COUNTY, FLORIDA NOT LESS THAN 45 DAYS PRIOR TO THE DATE OF SUCH SPECIAL ELECTION; AUTHORIZING THE CITY MANAGER TO EXECUTE THE ESCROW AND FIFTH MODIFICATION, SUBJECT TO APPROVAL BY THE ELECTORATE, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, AND SUBJECT TO DELIVER TO THE CITY ATTORNEY WITHIN SEVEN (7) DAYS OF THE EFFECTIVE DATE OF THIS RESOLUTION, THE EXECUTED FIFTH AMENDMENT TO BE HELD IN ESCROW BY THE CITY ATTORNEY; AUTHORIZING THE CITY ATTORNEY TO TAKE ANY AND ALL STEPS NECESSARY ON BEHALF OF THE CITY TO COMPLY WITH THE ESCROW; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE. WHEREAS, the City of Miami ("City") is the owner of that certain tract of land on Watson Island comprising approximately 19.35 acres and located at 1111 Parrot Jungle Trail, Miami, Florida ("Property"); and WHEREAS, ESJ JI Leasehold, LLC ("ESJ") and the City are parties to that certain Lease and Development Agreement, as modified from time to time (collectively, "Lease") for the Property; and WHEREAS, pursuant to the Lease, ESJ is leasing the Property from the City for the operation of a botanical garden and theme park attraction known as Jungle Island ("Jungle Island"); and WHEREAS, the Lease was modified pursuant to the Third Modification to the Lease and Development Agreement ("Third Modification") which modified the Lease definition for "Additional Improvements" to possibly include a themed hotel and related retail and entertainment, thereby providing ESJ with the potential opportunity to develop and operate a hotel on the Property, subject to approval of the electorate in a City-wide referendum and further subject to the approval of the State of Florida Board of Trustees of the Internal Improvement Trust Fund and any and all applicable laws, codes, and regulations, including, but not limited to, the City's Zoning Ordinance; and WHEREAS, ESJ desires to develop a hotel, parking structure, and related improvements (collectively, "Hotel") on the Property and requires an extension on the term of the Lease, which has approximately forty-three (43) years remaining, to obtain the financing necessary for the construction of the Hotel; and WHEREAS, Section 29-C of the Charter of the City of Miami, Florida ("Charter") states that "Notwithstanding any provision to the contrary contained in the Charter or Code of the City of Miami, no sale, conveyance, lease or management agreement may be entered into for the management, occupancy or use of the area known as Watson Island for periods greater than one year unless (1) there shall have been, prior to the date of the City Commission's consideration of such sale, lease, management agreement, an advertisement soliciting proposals for said sale, lease or management agreement, published in a daily newspaper of general paid circulation in the City, allowing not less than ninety (90) days for the City's receipt of proposals from prospective purchasers or lessees, said advertisement to be no less than one-fourth page and the headline in the advertisement to be in a type no smaller than 18-point; and, (2) the proposed transaction be approved by a majority of the votes cast by the electorate at a referendum. The procedures for selection of proposals shall be those provided by Charter section 29-A(c) or (d) as appropriate and/or by applicable City Code provisions. Nothing herein shall affect the existing rights or privileges, if any, of any lessee, permittee, licensee or concessionaire currently situated in said area; however, any enlargement, amendment, transfer, or increase in those rights or privileges as may be in existence at the time this amendment is adopted shall require compliance with the provisions of this amendment. This Charter a) U U oo 0 N oo 0 0 0 Amendment shall not affect the City's use or occupancy of the area, nor shall it apply to contracts for the construction of any City facilities or improvements in the area; further, nothing contained herein shall apply to projects of any govemmental agency or instrumentality;" and WHEREAS, the City and ESJ desire to enter into both an Escrow Agreement ("Escrow") and a Fifth Modification to the Lease and Development Agreement ("Fifth Modification"), both in substantially the attached form, which will modify the current remaining lease term ("Term") of approximately forty three (43) years and extend the Term from the year 2060 to the year 2099 and include a fifteen (15) year option to extend the Lease to 2114; providing additional annual rent payment of Two Hundred Fifty Thousand Dollars ($250,000.00) and, once the Hotel has stabilized, increasing to the greater of One Million One Hundred Fifty Thousand Dollars ($1,150,000.00) or Five Percent (5%) of annual gross revenues from a new privately funded Hotel with a minimum cost of Fifty Million Dollars ($50,000,000.00), with a maximum height of one hundred thirty (130) feet and a design subject to City approval and successful land use and k zoning changes, as necessary, with said rent being in addition to the currently received greater of annual rent of Five Hundred Two Thousand One Hundred Sixty Eight Dollars ($502,168.00) and percentage rent from Jungle Island revenue; providing parking spaces sufficient to meet zoning ordinance requirements; further providing ancillary improvements consisting of retail and/or restaurant space of up to ten thousand (10,000) square feet and meeting room space of up to thirty thousand (30,000) square feet; with the aggregate payment of Seven Hundred Thousand Dollars ($700,000.00) towards the Ichimura-Miami Japanese Gardens ("Japanese Gardens") for construction of a walkway to Jungle Island, necessary repairs, and maintenance of the Japanese Gardens; payments totaling Five Hundred Thousand Dollars ($500,000.00) over a ten (10) year period to be used for the renovation of homes in blighted areas of the City whose residents are of low economic means; establishing a reserve account for capital repairs of Two Hundred Thousand Dollars ($200,000.00) per year; implementing a transfer fee of Three Percent (3%) of gross sales proceeds if the Property is transferred or assigned; implementing a refinancing fee of One Percent (1%) of the refinancing loan proceeds should the Property be refinanced after the initial refinancing; providing a rent credit to ESJ in the amount of Five Hundred Thousand Dollars ($500,000.00) to be credited as reimbursements for costs related to shoreline stabilization and improvements needed as a result of erosion from hurricane damage in 2017; and WHEREAS, pursuant to the Section 29-B of the Charter, entitled "City Owned Property Sale or Lease -Generally," and Section 3(f)(iii) of the Charter, entitled "Powers," the City needs two (2) independent appraisals affirming the fair market value of the Hotel as reflected in the Fifth Modification; and WHEREAS, the Fifth Modification with ESJ will be subject to such other restrictions, reversions, and retention by the City of all other rights; and WHEREAS, pursuant to Resolution No. _ adopted on , the City Attorney was directed to draft the ballot language contained herein; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: 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. In accordance with the provisions of Section 29-B of the Charter and Section 6.03 of the Miami -Dade County Home Rule Charter, a Special Election is being called and directed in the City from 7:00 A.M. until 7:00 P.M. on Tuesday, August 28, 2018 for the purpose of submitting to the qualified electors of the City for their approval or disapproval of the proposed Fifth Modification to the Lease for the Property. L) 0- a) s 0 C N a N L V 4-. U co 0 N co 0 to 0 c 0 tit Section 3. Section 29-B of the Charter is proposed to be amended in the following particulars:1 a .� n N U Q "CHARTER AND CODE OF THE CITY OF MIAMI, FLORIDA a, SUBPART A. THE CHARTER N - •- CO -a L 0 Sec. 29-B. City -owned property sale or lease -Generally. 4- ° kc -0 0 E Notwithstanding any provision to the contrary contained in this Charter or the City -0 v Code, and except as provided below, 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 sale or lease. The city commission is also prohibited from favorably considering any sale or lease of city -owned property unless (a) there shall have been, prior to the date of the city commission's consideration of such sale or lease, an advertisement soliciting proposals for said sale or lease published in a daily newspaper of general paid circulation in the city, allowing not less than ninety (90) days for the city's receipt of proposals from prospective purchasers or lessees, said advertisement to be no less than one-fourth ('/4) page and the headline in the advertisement to be in a type no smaller than 18- point and, (b) except as provided below, there shall have been at least three (3) written proposals received from prospective purchasers or lessees; however, if there are less than three (3) such proposals received and if the guaranteed return under the proposal whose acceptance is being considered is equal to fair market value the city commission determines that the contemplated sale or lease will be in the city's best interest then, subject to the approval of a majority of the votes cast by the electorate at a referendum, the sale or lease may be consummated. Any lease for the development of improvements of city -owned property which has been approved by voter referendum shall require additional voter referendum approval for a development on City -owned property where the developer has not obtained the necessary building permits within four (4) years of the effective date of the lease. Such section shall not be applicable when the delay in the performance of any obligation is as a result of force majeure, or litigation that questions the validity of the vote, or the City Commission action to place the question for referendum, then the performance of such obligation shall be extended by the length of the delay. In the case of city -owned property which is not waterfront, when the value of such property to be sold or leased (individual leaseholds within a single city -owned property shall not be considered as a single parcel of property for such valuation purposes) is five hundred thousand dollars ($500,000) or less, based on an appraisal performed by a state -certified appraiser, the city commission, by a 4/5ths affirmative vote, may sell or lease said city-. owned property after compliance with the advertisement requirements set forth above but without the necessity of a referendum. The above provisions and any other city requirements for competitive bidding shall not apply when: (a) conveying property to implement housing programs or projects which are intended to benefit persons or households with low and/or moderate income, the criteria of which to be provided for by federal and/or state law or by the city commission; (b) conveying property to implement projects authorized under the Florida Community Redevelopment Act of 1969, as amended; 1 Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. (c) conveying property to implement projects of any governmental agency or instrumentality; (d) disposing of property acquired as a result of foreclosure; (e) disposing of property acquired in connection with delinquent taxes which properties were conveyed to the city by the Miami -Dade board of county commissioners under the provisions of Section 197.592 Florida Statutes, as amended; and (f) disposing of non -waterfront property to the owner of an adjacent property when the subject property is 7,500 square feet or less or the subject non - waterfront property is non -buildable. Notwithstanding anything herein to the contrary, the city commission, by a 4/5ths affirmative vote, may: (a) grant a lessee of city -owned property a one-time extension during the last five years of its lease, without the necessity of a referendum, for the purpose of funding additional capital improvements. The extended term shall not exceed twenty-five percent of the original term or ten years, whichever is less. The granting of such an extension is subject to the lessee paying fair market rent as determined by the city at the time of such extension and not being in default of its lease with the city nor in arrearage of any monies due the city; and (b) amend the Lease Agreement between the City of Miami and Biscayne Bay Restaurant Corp., d/b/a Rusty Pelican, dated February 13, 1970, as amended, to (i) extend the lease for an additional term of fifteen (15) years, with the option to renew for two (2) additional five (5) year periods, (ii) increase the amount of the minimum guarantee to the City to at least $360,000 per lease year effective upon execution of the lease amendment, and (iii) require Rusty Pelican to complete capital improvements to the property, including a public baywalk, in the amount of not less than $3 Million, within twenty-four (24) months of the effective date of the lease amendment; and (c) waive competitive bidding and execute a lease with Dade Heritage Trust, Inc. for the City -owned building located at 190 Southeast 12th Terrace, for a term of thirty (30) years, with two (2) thirty (30) year renewals, for minimum annual rent of $600.00 with Consumer Price Index adjustments, with restrictions, reversions, and retention by the City of all other rights; and (d) waive competitive bidding and execute a Fifth Amendment to the Lease Agreement with Aligned Bayshore Marina, LLC, also known as Monty's, to extend the current lease term by an additional term of approximately thirty -two (32) years (to expire May 31, 2067), with two (2) ten (10) year options to renew for a total term of fifty-two (52) years (to expire May 31, 2087); which will increase minimum rent payment by an additional two hundred thousand dollars ($200,000.00) per lease year, for a minimum of ten million dollars ($10,000,000.00) over the base term of the amended Lease Agreement, or one and three quarters percent (1.75%) of gross rent receipts from the Property, whichever is greater, as additional rent due to the City and, commencing January 1, 2019, minimum annual total rent (inclusive of the additional minimum rent) shall be one million five hundred thousand dollars ($1,500,000.00), plus an additional twenty five thousand dollars ($25,000.00) to be paid on an annual basis for the full amended term to a special fund to be established by the City for the benefit of low income housing renovation; further providing capital improvements to the Property of a minimum of seven million five hundred thousand dollars ($7,500,000.00) to be spent within three (3) years of the electorate's approval of the Fifth Amendment to the Lease Agreement; further creating a capital account requiring a minimum additional investment in the Property of four million dollars ($4,000,000.00) over the amended Lease term, inclusive of the renewal options; requiring a Transfer Fee payment to the City if the Property is transferred or assigned; and further requiring a Refinancing Fee payment to the City should the Property be refinanced after the initial refinancing. (e) waive competitive bidding and approve the Fifth Modification to the Lease with ESJ JI Leasehold, LLC, which modifies the remaining term of approximately forty three (43) years and extends the Term from the year 2060 to the year 2099 and includes a Fifteen (15) vear option to extend the Lease to the vear 2114; providing an additional annual rent payment of Two Hundred Fifty Thousand Dollars ($250,000.00) increasing, once the proposed hotel has stabilized, to the greater of One Million One Hundred Fifty Thousand Dollars ($1,150,000.00) or Five Percent (5%) of annual qross revenues from a new privately funded hotel development with a minimum cost of Fifty Million Dollars ($50,000,000.00) with a maximum height of One Hundred Thirty (130) feet and a design subject to City approval and successful land use and zoning changes, as necessary, with said rent being in addition to the currently received greater of annual rent of Five Hundred Two Thousand One Hundred Sixty Eight Dollars ($502,168.00) and percentage rent from Jungle Island revenue; with parking spaces sufficient to meet zoning ordinance requirements; ancillary improvements consisting of retail and/or restaurant space of up to ten thousand (10,000) square feet and meeting room space of up to thirty thousand (30,000) square feet; with an aggregate payment of Seven Hundred Thousand Dollars ($700,000.00) towards the Ichimura-Miami Japanese Gardens for construction of a walkway to Jungle Island and necessary repairs and maintenance of the Ichimura-Miami Japanese Gardens; payments totaling Five Hundred Thousand Dollars ($500,000.00) over a ten (10) year period to be used for the renovation of homes in blighted areas of the City whose residents are of low economic means; establishing a reserve account for capital repairs of Two Hundred Thousand Dollars ($200,000.00) per year; implementing a transfer fee of Three Percent (3%) of gross sales proceeds, if the Property is transferred or assigned; implementing a refinancing fee of One Percent (1%) of refinancing loan proceeds, should the Property be refinanced after the initial refinancing. Notwithstanding anything in this Charter to the contrary, the City may enter into leases or management agreements, for any City -owned submerged lands, with entities having a possessory or ownership interest in the abutting riparian uplands for building marinas, docks or like facilities, using methods adopted by ordinance on the condition that such leases or management agreements result in a return to the City of at least fair market value." /✓ Section 4. The Special Election shall be held at the polling places in the precincts designated, all as shown on the list attached hereto and made a part hereof and referred to as Exhibit No. 1 or as may be designated by the Supervisor of Elections of Miami -Dade County, Florida ("Supervisor of Elections") in conformity with the provisions of the general laws of the State of Florida ("State"). The Precinct Election Clerks and Inspectors to serve at said polling places on said Special Election date shall be those designated by the Supervisor of Elections for such purpose in accordance with the general laws of the State. A description of the registration books and records which pertain to Special Election precincts wholly or partly within the City and which the City is adopting and desires to use for holding such Special Election is all voter information cards, registration books, records, and certificates pertaining to electors of the City and established and maintained as official by the Supervisor of Elections in conformity with the provisions of the general laws of the State are hereby adopted and declared to be, and shall hereafter be recognized and accepted as, official voter information cards, registration books, records, and certificates of the City. Section 5. In compliance with Section 100.342, Florida Statutes (2016), regarding any Special Election not otherwise provided for, there shall be at least thirty (30) days' notice of the Special Election by publication in a newspaper of general circulation in the City. The City Clerk is authorized and directed to publish notice of the adoption of this Resolution and of the provisions hereof at least twice - once in the fifth week and once in the third week prior to the week in which the aforesaid Special Election is to be held - in newspaper(s) of general circulation in the City which notice shall be substantially in the following form: NOTICE OF SPECIAL ELECTION TO AMEND THE MIAMI CITY CHARTER TO BE HELD ON TUESDAY, AUGUST 28, 2018 IN THE CITY OF MIAMI, FLORIDA PURSUANT TO RESOLUTION NO. A Special Election will be held on Tuesday, August 28, 2018 from 7:00 A.M. until 7:00 P.M. in the City of Miami, Florida, at the polling places in the several Special Election precincts designated by the Board of County Commissioners of Miami -Dade County, Florida as set forth herein, unless otherwise provided by law, and submitting to the qualified electors of the City of Miami, Florida, the following question: Shall Miami's Charter be amended extending Jungle Island's Lease for an additional 39-years, plus 15-year option, by waiving competitive bidding and allowing construction of a privately funded hotel and attractions with a maximum 130-foot height in exchange for: • Additional annual rent for the hotel of $250,000.00 increasing to $1,150,000.00 or 5.0% of hotel gross sales, whichever greater; • A contribution of $700,000.00 to the adjacent City park and $500,000.00 for low-income housing. This Charter Amendment will amend Section 29-B of the Miami Charter waiving competitive bidding and approving the Fifth Modification to the Lease with ESJ JI Leasehold, LLC, for an additional thirty nine (39) years, plus a fifteen (15) year option, under requiring Jungle Island to build and privately fund a new hotel and attractions, with a maximum one hundred thirty (130) foot height; pay additional annual rent for the hotel of Two Hundred Fifty Thousand Dollars ($250,000.00), increasing to One Million One Hundred Fifty Thousand Dollars ($1,150,000.00) or Five Percent (5%) of hotel gross sales, whichever is greater; and contribute Seven Hundred Thousand Dollars ($700,000.00) to the adjacent City park and Five Hundred Thousand Dollars ($500,000.00) for low-income housing; with a Three Percent (3%) transfer fee of gross sales proceeds and One Percent (1%) refinancing fee; with restrictions, reversions, and retention by the City of all other rights, to be redeveloped pursuant to the proposed Fifth Modification to the Lease. By order of the Commission of the City of Miami, Florida. Section 6. The official ballot to be used at said Special Election shall be in full compliance with the laws of the State with respect to vote -by -mail ballots and to the use of the mechanical voting machines or the Computer Election System and shall be in substantially the following form: a) 0 v N o. a, o E N al -o 0 • o -0 0 E a 0 kr, L o Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk "Official Ballot" Special Election Tuesday, August 28, 2018 for Approval or Disapproval of the following question: Proposed Jungle Island hotel and lease extension on City -owned Watson Island. Shall Miami's Charter be amended extending Jungle Island's Lease for an additional 39-years, plus 15-year option, by waiving competitive bidding and allowing construction of a privately funded hotel and attractions with a maximum 130-foot height in exchange for: • Additional annual rent for the hotel of $250,000.00 increasing to $1,150,000.00 or 5.0% of hotel gross sales, whichever greater; • A contribution of $700,000.00 to the adjacent City park and $500,000.00 for low-income housing. YES NO Section 7. The form of the ballot shall be in accordance with requirements of general election laws. Electors desiring to vote in approval of the Question described above shall be instructed to vote their selection next to the word "YES" within the ballot containing the statement relating to the Question. Electors desiring to vote to disapprove the Question shall be instructed to vote their selection next to the word "NO" within the ballot containing the statement relating to the Question. Once individuals are satisfied with their choice, they shall press the "Vote" button and the ballot shall be cast. Section 8. The City Clerk shall cause to be prepared vote -by -mail ballots containing the Question set forth in Section 6 above for the use of vote -by -mail electors entitled to cast such ballots in said Special Election. Section 9. All qualified electors of said City shall be permitted to vote in said Special Election and the Supervisor of Elections is hereby requested, authorized, and directed to furnish, at the cost and expense of the City, a list of all qualified electors residing in the City as shown by the registration books and records of the Office of said Supervisor of Elections and duly certify the same for delivery to and for use by the election officials designated to serve at the respective polling places in said general election precincts. Section 10. For the purpose of enabling persons to register who are qualified to vote in said Special Election on Tuesday, August 28, 2018 and who have not registered under the provisions of the general laws of the State and Chapter 16 of the Code of the City of Miami, Florida, as amended, or who have transferred their legal residence from one voting precinct to another in the City, they may register Monday through Friday from 8:00 A.M. to 5:00 P.M. at the Miami -Dade County Elections Department located at 2700 Northwest 87th Avenue, Doral, :k Florida within such period of time as may be designated by the Supervisor of Elections. In addition to the above place and times, qualified persons may register at such branch offices and may also use any mobile registration van for the purpose of registration in order to vote in the herein described Special Election during such times and on such dates as may be designated by the Supervisor of Elections. Section 11. Todd B. Hannon, the Clerk, or his duly appointed successor, is hereby designated and appointed as the official representative of the City Commission in all transactions with the Supervisor of Elections related to matters pertaining to the use of the registration books and the holding of said Special Election. Section 12. The City Clerk shall deliver a certified copy of this Resolution to the Supervisor of Elections not less than forty-five (45) days prior to the date of the Special Election. Section 13. By a four -fifths (4/5ths) affirmative vote, the City Manager is authorized2 to execute the Escrow and Fifth Modification and to deliver to the City Attorney, on behalf of the City as Escrow Agent, within seven (7) days of the effective date of this Resolution, the executed Fifth Modification subject to approval by the electorate. Section 14. The City Attorney is authorized' to take any and all steps on behalf of the City to comply with the Escrow. Section 15. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.3 APPROVED AS TO FORM AND CORRECTNESS: 2 The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to, those prescribed by applicable City Charter and City Code provisions. 3 If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) 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. Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk EXHIBIT 2 ° R Date: 05/02/2018 Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk AGENDA ITEM SUMMARY FORM File ID: #4102 Commission Meeting Date: 06/08/2018 Requesting Department: Department of Real Estate and Asset Management Sponsored By: District Impacted: District 2 Type: Resolution Subject: Charter Amendment - Jungle Island Purpose of Item: A Resolution of the Miami City Commission, with attachment(s), approving, setting forth and submitting to the electorate a proposed charter amendment, amending the Charter of the City of Miami, Florida as amended ("Charter"), known as Charter Amendment No.; amending Section 29-B of the Charter entitled "City -Owned Property Sale or Lease — Generally" to authorize the City Commission by a four —fifths (4/5ths) affirmative vote, waive competitive bidding and execute the proposed Escrow and Fifth Modification to the Lease with ESJ JI Leasehold, LLC, which will modify the remaining term of Forty Three (43) years and extend the Term from the year 2060 to the year 2099 and include a Fifteen (15) year option to extend the Lease to the year 2114; provide an annual rent payment, once the hotel has stabilized, of the greater of One Million One Hundred Fifty Thousand Dollars ($1,150,000.00) or Five Percent (5.0%) of annual gross revenues from a new privately funded hotel development with a minimum cost of Fifty Million Dollars ($50,000,000.00) with a maximum height of One Hundred Thirty (130) feet and a design subject to City approval and successful zoning changes, with said rent being in addition to the currently received greater of annual rent of Five Hundred Two Thousand One Hundred Sixty Eight Dollars ($502,168.00) and percentage rent from Jungle Island revenue; provide parking spaces sufficient to meet zoning code requirements; further providing ancillary improvements consisting of retail, and/or restaurant space of up to Ten Thousand (10,000) square feet and meeting room space of up to Thirty Thousand (30,000) square feet; with the aggregate payment of Seven Hundred Thousand Dollars ($700,000.00) towards the Ichimura-Miami Japanese Gardens for construction of a walkway to Jungle Island, necessary repairs and maintenance of the Ichimura-Miami Japanese Gardens; payments totaling Five Hundred Thousand Dollars ($500,000.00) over a Ten (10) year period to be used for the renovation of historic single family homes in blighted areas of the City whose residents are of low economic means; establish a reserve account for capital repairs of Two Hundred Thousand Dollars ($200,000.00) per year; implement a transfer fee of Three Percent (3%) of gross sales, less the outstanding principal balance of all debt owed by ESJ to an unaffiliated third party and transaction costs, if the Property is transferred or assigned; further implement a refinancing fee of One Percent (1 %) of the refinancing loan proceeds, less all third party costs, expenses, amounts required to fully repay the debt being refinanced and all refinancing proceeds not disbursed to ESJ investors, should the Property be refinanced after the initial refinancing; a rent credit to ESJ in the amount of Five Hundred Thousand Dollars ($500,000.00) to be credited as reimbursements for costs related to shoreline stabilization and improvements needed as Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk a result of erosion from hurricane damage in 2017., with additional terms and conditions as set forth in the Agreement; with restrictions, reversions, and retention by the City of all other rights; calling for a referendum special election and providing that Charter Amendment No._ will be submitted to the electorate at the referendum special election to be held on August 28, 2018; designating and appointing the City Clerk as the official representative of the City Commission with respect to the use of voter registration books and records; further directing the City Clerk to cause a certified copy of the herein Resolution to be delivered to the Supervisor of Elections of Miami -Dade County, Florida, not less than forty-five (45) days prior to the date of such special election; providing an immediate effective date for this Resolution. Background of Item: The City of Miami ("City") is the owner of that certain tract of land on Watson Island comprising approximately 19.35 acres and located at 1111 Parrot Jungle Trail ("Property"). ESJ JI Leasehold, LLC ("ESJ") and the City are parties to that certain Lease and Development Agreement, as modified from time to time (as so modified, collectively, "Lease") for the Property. Pursuant to the Lease, ESJ is leasing the Property from the City for the operation of a botanical garden and theme park attraction known as Jungle Island ("Jungle Island"). The Lease was modified pursuant to, the Third Modification to the Lease and Development Agreement ("Third Modification") which modified the Lease definition for "Additional Improvements" to possibly include a themed hotel and related retail and entertainment, thereby providing ESJ with the potential opportunity to develop and operate a hotel on the Property, subject to approval of the electorate in a Citywide referendum, and further subject to the approval of the State of Florida Board of Trustees of the Internal Improvement Trust Fund and any and all applicable laws, codes, and regulations, including, but not limited to, the City's Zoning Ordinance. ESJ desires to develop a hotel, parking structure, and related improvements (collectively, "Hotel") on the Property and requires an extension on the term of the Lease, which has approximately Forty Three (43) years remaining, to obtain the financing necessary for the construction of the Hotel. Chapter 29-C of the Charter of the City of Miami states that Notwithstanding any provision to the contrary contained in the Charter or Code of the City of Miami, no sale, conveyance, lease or management agreement may be entered into for the management, occupancy or use of the area known as Watson Island for periods greater than one year unless (1) there shall have been, prior to the date of the city commission's consideration of such sale, lease, management agreement, an advertisement soliciting proposals for said sale, lease or management agreement, published in a daily newspaper of general paid circulation in the city, allowing not less than ninety (90) days for the city's receipt of proposals from prospective purchasers or lessees, said advertisement to be no less than one-fourth page and the headline in the advertisement to be in a type no smaller than 18-point; and, (2) the proposed transaction be approved by a majority of the votes cast by the electorate at a referendum. The procedures for Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk selection of proposals shall be those provided by Charter section 29-A(c) or (d) as appropriate and/or by applicable City Code provisions. Nothing herein shall affect the existing rights or privileges, if any, of any lessee, permittee, licensee or concessionaire currently situated in said area; however, any enlargement, amendment, transfer, or increase in those rights or privileges as may be in existence at the time this amendment is adopted shall require compliance with the provisions of this amendment. This Charter Amendment shall not affect the city's use or occupancy of the area, nor shall it apply to contracts for the construction of any city facilities or improvements in the area; further, nothing contained herein shall apply to projects of any governmental agency or instrumentality. The City and ESJ desire to enter into both an Escrow Agreement ("Escrow") and the Fifth Modification ("Modification") to the Lease and Development Agreement ("Lease"), both in substantially the attached form, which will modify the current remaining lease term ("Term") of Forty Three (43) years and extend the Term from the year 2060 to the year 2099 and include a Fifteen (15) year option to extend the Lease to 2114; providing rent payment of the greater of One Million One Hundred Fifty Thousand Dollars ($1,150,000.00) or Five Percent (5.0%) of annual gross revenues from a new privately funded hotel development with a minimum cost of Fifty Million Dollars ($50,000,000.00) with a maximum height of One Hundred Thirty (130) feet and a design subject to City approval and successful zoning changes, with said rent being in addition to the currently received greater of annual rent of Five Hundred Two Thousand One Hundred Sixty Eight Dollars ($502,168.00) and percentage rent from Jungle Island revenue; providing parking spaces sufficient to meet zoning code requirements; further providing ancillary improvements consisting of retail, and/or restaurant space of up to Ten Thousand (10,000) square feet and meeting room space of up to Thirty Thousand (30,000) square feet; with the aggregate payment of Seven Hundred Thousand Dollars ($700,000.00) towards the Ichimura-Miami Japanese Gardens ("Japanese Gardens") for construction of a walkway to Jungle Island, necessary repairs and maintenance of the Japanese Gardens; payments totaling Five Hundred Thousand Dollars ($500,000.00) over a Ten (10) year period to be used for the renovation of historic single family homes in blighted areas of the City whose residents are of low economic means ; establishing a reserve account for capital repairs of Two Hundred Thousand Dollars ($200,000.00) per year; implementing a transfer fee of Three Percent (3%) of gross sales, less the outstanding principal balance of all debt owed by ESJ to an unaffiliated third party and transaction costs, if the Property is transferred or assigned; further implementing a refinancing fee of One Percent (1 %) of the refinancing loan proceeds, less all third party costs, expenses, amounts required to fully repay the debt being refinanced and all refinancing proceeds not disbursed to ESJ investors, should the Property be refinanced after the initial refinancing; a rent credit to ESJ in the amount of Five Hundred Thousand Dollars ($500,000.00) to be credited as reimbursements for costs related to shoreline stabilization and improvements needed as a result of erosion from hurricane damage in 2017. Pursuant to the Charter of the City ("Charter") Section 29-B, entitled "City Owned Property Sale or Lease -Generally" and Section 3(f)(iii), entitled "Powers," the City will need two (2) independent appraisals affirming the fair market value of the Agreement. The Agreement with ESJ will be subject to such other restrictions, reversions, and retention by the City of all other rights. Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk Pursuant to Resolution No. , adopted on , the City Attorney was directed to draft the ballot language contained within the Resolution. Budget Impact Analysis Item is Related to Revenue Item is NOT funded by Bonds Total Fiscal Impact: $250,000 per year after the hotel opens for business and continuing for the first 3 years then increasing to the greater of $1,150,000 or 5% of gross revenues. Account #04002.221100.448000 rents and royalties. Real Estate and Asset Management Office of Management and Budget Office of Management and Budget City Manager's Office Legislative Division City Manager's Office Office of the City Attomey Office of the City Attorney City Commission Reviewed By Aldo Bustamante Everton Garvis Christopher M Rose Femando Casamayor Valentin J Alvarez Nikolas Pascual Barnaby L. Min Victoria Mendez Todd B. Hannon Department Head Review Budget Analyst Review Budget Review Assistant City Manager Review Legislative Division Review City Manager Review Deputy City Attorney Review Approved Form and Correctness Meeting Completed 05/02/2018 10:46 AM Completed 05/02/2018 4:14 PM Completed 05/04/2018 12:28 PM Completed 05/14/2018 9:22 AM Completed 05/14/2018 3:49 PM Completed 05/29/2018 11:36 AM Pending 05/17/2018 8:39 AM Pending Pending 06/08/2018 10:30 AM Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk City of Miami Legislation Resolution City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 4102 Final Action Date: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), (i) APPROVING, SETTING FORTH, AND SUBMITTING TO THE ELECTORATE A PROPOSED CHARTER AMENDMENT AMENDING THE CHARTER OF THE CITY OF MIAMI, FLORIDA, AS AMENDED ("CHARTER"); AMENDING SECTION 29-B OF THE CHARTER, ENTITLED "CITY -OWNED PROPERTY SALE OR LEASE -GENERALLY", AUTHORIZING THE CITY COMMISSION BY A FOUR -FIFTHS (4/5THS) AFFIRMATIVE VOTE, TO WAIVE COMPETITIVE BIDDING AND AUTHORIZING THE CITY MANAGER TO EXECUTE BOTH AN ESCROW AGREEMENT ("ESCROW") AND THE FIFTH MODIFICATION ("FIFTH MODIFICATION") TO THE LEASE AND DEVELOPMENT AGREEMENT ("LEASE"), BOTH IN SUBSTANTIALLY THE ATTACHED FORM, BETWEEN THE CITY OF MIAMI ("CITY") AND ESJ JI LEASEHOLD, LLC ("ESJ") FOR 19.35 ACRES OF CITY OWNED WATERFRONT PROPERTY, AMENDING CERTAIN TERMS OF THE EXISTING LEASE INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING MATERIAL TERMS: FOR ADDITIONAL IMPROVEMENTS ON THE 19.35 ACRES OF CITY -OWNED WATERFRONT PROPERTY; TO MODIFY THE CURRENT REMAINING LEASE TERM ("TERM") OF APPROXIMATELY FORTY THREE (43) YEARS AND EXTEND THE TERM TO 2099, WITH AN ADDITIONAL OPTION OF FIFTEEN (15) YEARS TO EXTEND THE LEASE TO 2114; PAYMENT OF ADDITIONAL ANNUAL RENT OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) INCREASING, ONCE THE HOTEL HAS STABILIZED, TO THE GREATER OF ONE MILLION ONE HUNDRED FIFTY THOUSAND DOLLARS ($1,150,000.00) OR FIVE PERCENT (5%) OF ANNUAL GROSS REVENUES FROM A FIFTY MILLION DOLLAR ($50,000,000.00) HOTEL, WITH A ONE HUNDRED THIRTY (130) FOOT MAXIMUM HEIGHT, SUBJECT TO CITY DESIGN APPROVAL AND SUCCESSFUL ZONING CHANGES; PROVIDING PARKING, RETAIURESTAURANT AND MEETING ROOM SPACE; PROVIDING IMPROVEMENTS, REPAIRS AND MAINTENANCE TO THE ICHIMURA-MIAMI JAPANESE GARDENS IN THE AMOUNT OF SEVEN HUNDRED THOUSAND DOLLARS ($700,000.00); PROVIDING A CONTRIBUTION OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00), PAID OVER A TEN (10) YEAR PERIOD, FOR LOW INCOME HOUSING RENOVATIONS IN BLIGHTED AREAS OF THE CITY; ESTABLISH A REPAIRS RESERVE ACCOUNT; IMPLEMENTING A THREE PERCENT (3%) TRANSFER FEE OF GROSS SALE PROCEEDS; AND FURTHER IMPLEMENTING A REFINANCING FEE OF ONE PERCENT (1%) OF LOAN PROCEEDS; A RENT CREDIT TO ESJ IN THE AMOUNT OF FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) TO BE CREDITED AS REIMBURSEMENTS FOR COSTS RELATED TO SHORELINE STABILIZATION AND IMPROVEMENTS NEEDED AS A RESULT OF EROSION FROM HURRICANE DAMAGE IN 2017; WITH RESTRICTIONS, REVERSIONS, AND RETENTION BY THE CITY OF ALL OTHER RIGHTS; CALLING FOR A SPECIAL ELECTION TO BE HELD ON AUGUST 28, 2018; DESIGNATING AND APPOINTING THE CITY CLERK AS Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk THE OFFICIAL REPRESENTATIVE OF THE CITY COMMISSION WITH RESPECT TO THE USE OF VOTER REGISTRATION BOOKS AND RECORDS; FURTHER DIRECTING THE CITY CLERK TO CAUSE A CERTIFIED COPY OF THE HEREIN RESOLUTION TO BE DELIVERED TO THE SUPERVISOR OF ELECTIONS OF MIAMI-DADE COUNTY, FLORIDA, NOT LESS THAN 45 DAYS PRIOR TO THE DATE OF SUCH SPECIAL ELECTION; AUTHORIZING THE CITY MANAGER TO EXECUTE THE ESCROW AND FIFTH MODIFICATION, SUBJECT TO APPROVAL BY THE ELECTORATE, AND TO DELIVER TO THE CITY ATTORNEY, ON BEHALF OF THE CITY AS ESCROW AGENT, WITHIN SEVEN (7) DAYS OF THE EFFECTIVE DATE OF THIS RESOLUTION, THE EXECUTED FIFTH AMENDMENT; AUTHORIZING THE CITY ATTORNEY TO TAKE ALL STEPS ON BEHALF OF THE CITY TO COMPLY WITH THE ESCROW; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE FOR THIS RESOLUTION. WHEREAS, the City of Miami ("City") is the owner of that certain tract of land on Watson Island comprising approximately 19.35 acres and located at 1111 Parrot Jungle Trail ("Property"); and WHEREAS, ESJ JI Leasehold, LLC ("ESJ") and the City are parties to that certain Lease and Development Agreement, as modified from time to time (as so modified, collectively, "Lease") for the Property; and WHEREAS, pursuant to the Lease, ESJ is leasing the Property from the City for the operation of a botanical garden and theme park attraction known as Jungle Island ("Jungle Island"); and WHEREAS, the Lease was modified pursuant to, the Third Modification to the Lease and Development Agreement ("Third Modification") which modified the Lease definition for "Additional Improvements" to possibly include a themed hotel and related retail and entertainment, thereby providing ESJ with the potential opportunity to develop and operate a hotel on the Property, subject to approval of the electorate in a Citywide referendum, and further subject to the approval of the State of Honda Board of Trustees of the Internal Improvement Trust Fund and any and all applicable laws, codes, and regulations, including, but not limited to, the City's Zoning Ordinance; and WHEREAS, ESJ desires to develop a hotel, parking structure, and related improvements (collectively, "Hotel") on the Property and requires an extension on the term of the Lease, which has approximately forty-three (43) years remaining, to obtain the financing necessary for the construction of the Hotel; and WHEREAS, Chapter 29-C of the Charter of the City of Miami states as follows: "Notwithstanding any provision to the contrary contained in the Charter or Code of the City of Miami, no sale, conveyance, lease or management agreement may be entered into for the management, occupancy or use of the area known as Watson Island for periods greater than one year unless (1) there shall have been, prior to the date of the City Commission's consideration of such sale, lease, management agreement, an advertisement soliciting proposals for said sale, lease or management agreement, published in a daily newspaper of general paid circulation in the City, allowing not less than ninety (90) days for the City's receipt of proposals from prospective purchasers or lessees, said advertisement to be no less than one-fourth page and the headline in the advertisement to be in a type no smaller than 18-point; and, (2) the proposed transaction be approved by a majority of the votes cast by the electorate at a referendum. The procedures for selection of proposals shall be those provided by Charter section 29-A(c) or (d) as appropriate and/or by applicable City Code provisions. Nothing herein Submitted into the public record for item(s) SP.2 on 06/08/2018 , City Clerk shall affect the existing rights or privileges, if any, of any lessee, permittee, licensee or concessionaire currently situated in said area; however, any enlargement, amendment, transfer, or increase in those rights or privileges as may be in existence at the time this amendment is adopted shall require compliance with the provisions of this amendment. This Charter Amendment shall not affect the City's use or occupancy of the area, nor shall it apply to contracts for the construction of any City facilities or improvements in the area; further, nothing contained herein shall apply to projects of any governmental agency or instrumentality;" and WHEREAS, the City and ESJ desire to enter into both an Escrow Agreement ("Escrow") and the Fifth Modification to the Lease and Development Agreement ("Fifth Modification"), both in substantially the attached form, which will modify the current remaining lease term ("Term") of approximately forty three (43) years and extend the Term from the year 2060 to the year 2099 and include a fifteen (15) year option to extend the Lease to 2114; providing additional annual rent payment of Two Hundred Fifty Thousand Dollars ($250,000.00) and, once the hotel has stabilized, increasing to the greater of One Million One Hundred Fifty Thousand Dollars ($1,150,000.00) or Five Percent (5%) of annual gross revenues from a new privately funded hotel development with a minimum cost of Fifty Million Dollars ($50,000,000.00), with a maximum height of one hundred thirty (130) feet and a design subject to City approval and successful zoning changes, with said rent being in addition to the currently received greater of annual rent of Five Hundred Two Thousand One Hundred Sixty Eight Dollars ($502,168.00) and percentage rent from Jungle Island revenue; providing parking spaces sufficient to meet zoning code requirements; further providing ancillary improvements consisting of retail, and/or restaurant space of up to ten thousand (10,000) square feet and meeting room space of up to thirty thousand (30,000) square feet; with the aggregate payment of Seven Hundred Thousand Dollars ($700,000.00) towards the Ichimura-Miami Japanese Gardens ("Japanese Gardens") for construction of a walkway to Jungle Island, necessary repairs and maintenance of the Japanese Gardens; payments totaling Five Hundred Thousand Dollars ($500,000.00) over a ten (10) year period to be used for the renovation of homes in blighted areas of the City whose residents are of low economic means; establishing a reserve account for capital repairs of Two Hundred Thousand Dollars ($200,000.00) per year; implementing a transfer fee of Three Percent (3%) of gross sales proceeds, if the Property is transferred or assigned; further implementing a refinancing fee of One Percent (1%) of the refinancing loan proceeds, should the Property be refinanced after the initial refinancing; a rent credit to ESJ in the amount of Five Hundred Thousand Dollars ($500,000.00) to be credited as reimbursements for costs related to shoreline stabilization and improvements needed as a result of erosion from hurricane damage in 2017; and WHEREAS, pursuant to the Charter of the City ("Charter") Section 29-B, entitled "City Owned Property Sale or Lease -Generally" and Section 3(f)(iii), entitled "Powers," the City will need two (2) independent appraisals affirming the fair market value of the Agreement; and WHEREAS, the Agreement with ESJ will be subject to such other restrictions, reversions, and retention by the City of all other rights; and WHEREAS, pursuant to Resolution No. _, adopted on , the City Attorney was directed to draft the ballot language contained herein; and NOW, THEREFORE. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: 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. Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk Section 2. In accordance with the provisions of Section 29-B of the Charter, and §6.03 of the Miami -Dade County Home Rule Charter, a Special Election is being called and directed in the City of Miami, Florida, from 7:00 A.M. until 7:00 P.M., on Tuesday, August 28, 2018, including for the purpose of submitting to the qualified electors of the City for their approval or disapproval of the proposed Modification to the Lease for the Property known as Jungle Island. Section 3. Section 29-B of the Charter is proposed to be amended in the following particulars:1 "CHARTER AND CODE OF THE CITY OF MIAMI, FLORIDA SUBPART A. THE CHARTER Sec. 29-B. City -owned property sale or lease -Generally. Notwithstanding any provision to the contrary contained in this Charter or the City Code, and except as provided below, 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 sale or lease. The city commission is also prohibited from favorably considering any sale or lease of city -owned property unless (a) there shall have been, prior to the date of the city commission's consideration of such sale or lease, an advertisement soliciting proposals for said sale or lease published in a daily newspaper of general paid circulation in the city, allowing not Tess than ninety (90) days for the city's receipt of proposals from prospective purchasers or lessees, said advertisement to be no Tess than one-fourth (') page and the headline in the advertisement to be in a type no smaller than 18- point and, (b) except as provided below, there shall have been at least three (3) written proposals received from prospective purchasers or lessees; however, if there are less than three (3) such proposals received and if the guaranteed return under the proposal whose acceptance is being considered is equal to fair market value the city commission determines that the contemplated sale or lease will be in the city's best interest then, subject to the approval of a majority of the votes cast by the electorate at a referendum, the sale or lease may be consummated. Any lease for the development of improvements of city -owned property which has been approved by voter referendum shall require additional voter referendum approval for a development on City -owned property where the developer has not obtained the necessary building permits within four (4) years of the effective date of the lease. Such section shall not be applicable when the delay in the performance of any obligation is as a result of force majeure, or litigation that questions the validity of the vote, or the City Commission action to place the question for referendum, then the performance of such obligation shall be extended by the length of the delay. In the case of city -owned property which is not waterfront, when the value of such property to be sold or leased (individual leaseholds within a single city -owned property shall not be considered as a single parcel of property for such valuation purposes) is five hundred thousand dollars ($500,000) or less, based on an appraisal performed by a state -certified appraiser, the city commission, by a 4/5ths affirmative vote, may sell or lease said city- owned property after compliance with the advertisement requirements set forth above but without the necessity of a referendum. 1 Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk The above provisions and any other city requirements for competitive bidding shall not apply when: (a) conveying property to implement housing programs or projects which are intended to benefit persons or households with low and/or moderate income, the criteria of which to be provided for by federal and/or state law or by the city commission; (b) conveying property to implement projects authorized under the Florida Community Redevelopment Act of 1969, as amended; (c) conveying property to implement projects of any governmental agency or instrumentality; (d) disposing of property acquired as a result of foreclosure; (e) disposing of property acquired in connection with delinquent taxes which properties were conveyed to the city by the Miami -Dade board of county commissioners under the provisions of Section 197.592 Florida Statutes, as amended; and (f) disposing of non -waterfront property to the owner of an adjacent property when the subject property is 7,500 square feet or less or the subject non - waterfront property is non -buildable. Notwithstanding anything herein to the contrary, the city commission, by a 4/5ths affirmative vote, may: (a) grant a lessee of city -owned property a one-time extension during the last five years of its lease, without the necessity of a referendum, for the purpose of funding additional capital improvements. The extended term shall not exceed twenty-five percent of the original term or ten years, whichever is less. The granting of such an extension is subject to the lessee paying fair market rent as determined by the city at the time of such extension and not being in default of its lease with the city nor in arrearage of any monies due the city; and (b) amend the Lease Agreement between the City of Miami and Biscayne Bay Restaurant Corp., d/b/a Rusty Pelican, dated February 13, 1970, as amended, to (i) extend the lease for an additional term of fifteen (15) years, with the option to renew for two (2) additional five (5) year periods, (ii) increase the amount of the minimum guarantee to the City to at least $360,000 per lease year effective upon execution of the lease amendment, and (iii) require Rusty Pelican to complete capital improvements to the property, including a public baywaik, in the amount of not less than $3 Million, within twenty-four (24) months of the effective date of the lease amendment; and (c) waive competitive bidding and execute a lease with Dade Heritage Trust, Inc. for the City -owned building located at 190 Southeast 12th Terrace, for a term of thirty (30) years, with two (2) thirty (30) year renewals, for minimum annual rent of $600.00 with Consumer Price Index adjustments, with restrictions, reversions, and retention by the City of all other rights; and (d) waive competitive bidding and execute a Fifth Amendment to the Lease Agreement with Aligned Bayshore Marina, LLC, also known as Monty's, to extend the current lease term by an additional term of approximately thirty -two (32) years (to expire May 31, 2067), with two (2) ten (10) year options to renew for a total term of fifty-two (52) years (to expire May 31, 2087); which will increase minimum rent payment by an additional two hundred thousand dollars ($200,000.00) per lease year, for a minimum of ten million dollars ($10,000,000.00) over the base term of the amended Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk Lease Agreement, or one and three quarters percent (1.75%) of gross rent receipts from the Property, whichever is greater, as additional rent due to the City and, commencing January 1, 2019, minimum annual total rent (inclusive of the additional minimum rent) shall be one million five hundred thousand dollars ($1,500,000.00), plus an additional twenty five thousand dollars ($25,000.00) to be paid on an annual basis for the full amended term to a special fund to be established by the City for the benefit of low income housing renovation; further providing capital improvements to the Property of a minimum of seven million five hundred thousand dollars ($7,500,000.00) to be spent within three (3) years of the electorate's approval of the Fifth Amendment to the Lease Agreement; further creating a capital account requiring a minimum additional investment in the Property of four million dollars ($4,000,000.00) over the amended Lease term, inclusive of the renewal options; requiring a Transfer Fee payment to the City if the Property is transferred or assigned; and further requiring a Refinancing Fee payment to the City should the Property be refinanced after the initial refinancing. (e) waive competitive bidding and approve the Fifth Modification to the Lease with ESJ JI Leasehold, LLC, which modifies the remaining term of approximately forty three (43) years and extends the Term from the year 2060 to the year 2099 and includes a Fifteen (15) year option to extend the Lease to the year 2114; provides an additional annual rent payment of Two Hundred Fifty Thousand Dollars ($250,000.00) increasing, once the hotel has stabilized, to the greater of One Million One Hundred Fifty Thousand Dollars ($1 150 000.00) or Five Percent (5%) of annual gross revenues from a new privately funded hotel development with a minimum cost of Fifty Million Dollars ($50,000,000.00) with a maximum height of One Hundred Thirty (130) feet and a design subject to City approval and successful zoning changes, with said rent being in addition to the currently received greater of annual rent of Five Hundred Two Thousand One Hundred Sixty Eight Dollars ($502,168.00) and percentage rent from Jungle Island revenue; with parking spaces sufficient to meet zoning code requirements; ancillary improvements consisting of retail and/or restaurant space of up to ten thousand (10,000) square feet and meeting room space of up to thirty thousand (30,000) square feet; with an aggregate payment of Seven Hundred Thousand Dollars ($700,000.00) towards the Ichimura-Miami Japanese Gardens for construction of a walkway to Jungle Island and necessary repairs and maintenance of the lchimura-Miami Japanese Gardens; payments totaling Five Hundred Thousand Dollars ($500 000.00) over a ten (10) year period to be used for the renovation of homes in blighted areas of the City whose residents are of low economic means; establishing a reserve account for capital repairs of Two Hundred Thousand Dollars ($200,000.00) per year; implementing a transfer fee of Three Percent (3%) of gross sales proceeds, if the Property is transferred or assigned; further implementing a refinancing fee of One Percent (1%) of refinancing loan proceeds, should the Property be refinanced after the initial refinancing. Notwithstanding anything in this Charter to the contrary, the City may enter into leases or management agreements, for any City -owned submerged lands, with entities having a possessory or ownership interest in the abutting riparian uplands for building marinas, docks or like facilities, using methods adopted by ordinance on the condition that such leases or management agreements result in a return to the City of at least fair market value." Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk Section 4. The Special Election shall be held at the polling places in the precincts designated, all as shown on the list attached hereto and made a part hereof and referred to as Exhibit No. 1 or as may be designated by the Supervisor of Elections of Miami -Dade County, Florida, in conformity with the provisions of the general laws of the State of Florida ("State"). The Precinct Election Clerks and Inspectors to serve at said polling places on said Special Election date shall be those designated by the Supervisor of Elections of Miami -Dade County, Florida for such purpose in accordance with the general laws of the State. A description of the registration books and records which pertain to Special Election precincts wholly or partly within the City and which the City is adopting and desires to use for holding such Special Election is all voter information cards, registration books, records, and certificates pertaining to electors of the City and established and maintained as official by the Supervisor of Elections of Miami -Dade County, Florida in conformity with the provisions of the general laws of the State are hereby adopted and declared to be, and shall hereafter be recognized and accepted as, official voter information cards, registration books, records, and certificates of the City. Section 5. In compliance with Section 100.342, Florida Statutes (2016), regarding any Special Election not otherwise provided for, there shall be at least thirty (30) days' notice of the Special Election by publication in a newspaper of general circulation in the City. The City Clerk of the City of Miami, Florida ("Clerk") is authorized and directed to publish notice of the adoption of this Resolution and of the provisions hereof at least twice, once in the fifth week and once in the third week prior to the week in which the aforesaid Special Election is to be held, in newspaper(s) of general circulation in the City which notice shall be substantially in the following form: NOTICE OF SPECIAL ELECTION TO AMEND THE MIAMI CITY CHARTER TO BE HELD ON TUESDAY, AUGUST 28, 2018 IN THE CITY OF MIAMI, FLORIDA PURSUANT TO RESOLUTION NO. A Special Election will be held on Tuesday, August 28, 2018 from 7:00 A.M. until 7:00 P.M. in the City of Miami, Florida, at the polling places in the several Special Election precincts designated by the Board of County Commissioners of Miami -Dade County, Florida, as set forth herein, unless otherwise provided by law, and submitting to the qualified electors of the City of Miami, Florida, the following question: Shall Miami's Charter be amended extending Jungle Island's Lease on Watson Island for an additional 39-years, plus 15-year option, by waiving competitive bidding, as follows; Jungle Island shall: 1. build and privately fund hotel and attractions, with 130-foot maximum height; pay additional annual rent for the hotel of $250,000.00, increasing to • $1,150,000.00 or 5.0% of hotel gross sales, whichever greater; • contribute $700,000.00 to the adjacent City park and $500,000.00 for low- income housing. This Charter Amendment will amend Section 29-B of the Miami Charter waiving competitive bidding and approving the Fifth Modification to the Lease with ESJ JI Leasehold, LLC, for an additional thirty nine (39) years, plus a fifteen (15) year option, under the following terms, Jungle Island shall: build and privately fund a new hotel and attractions, with a maximum one hundred thirty (130) foot height; pay additional annual rent for the hotel of Two Hundred Fifty Thousand Dollars Submitted into the public record for item(s) SP.2 . on 06/08/2018 , City Clerk ($250,000.00), increasing to One Million One Hundred Fifty Thousand Dollars ($1,150,000.00) or Five Percent (5%) of hotel gross sales, whichever is greater; and, contribute Seven Hundred Thousand Dollars ($700,000.00) to the adjacent City park and Five Hundred Thousand Dollars ($500,000.00) for low-income housing; with a Three Percent (3%) transfer fee of gross sales proceeds; and an approximate One Percent (1%) refinancing fee; with restrictions, reversions, and retention by the City of all other rights, to be redeveloped pursuant to the proposed Fifth Modification to the Lease. By order of the Commission of the City of Miami, Florida. Section 6. The official ballot to be used at said Special Election shall be in full compliance with the laws of the State with respect to vote -by -mail ballots and to the use of the mechanical voting machines or the Computer Election System and shall be in substantially the following form: "Official Ballot" Special Election Tuesday, August 28, 2018 for Approval or Disapproval of the following question: Proposed Jungle Island hotel and lease extension on City -owned Watson Island. Shall Miami's Charter be amended extending Jungle Island's Lease on Watson Island for an additional 39- years, plus 15-year option, by waiving competitive bidding, as follows; �t Jungle Island shall: • build and privately fund hotel and attractions, with 130- foot maximum height; • pay additional annual rent for the hotel of $250,000.00, increasing to $1,150,000.00 or 5.0% of hotel gross sales, whichever greater; • contribute $700,000.00 to the adjacent City park and $500,000.00 for low-income housing. YES NO Section 7. The form of the ballot shall be in accordance with requirements of general election laws. Electors desiring to vote in approval of the Question described above shall be instructed to vote their selection next to the word "YES" within the ballot containing the statement relating to the Question. Electors desiring to vote to disapprove the Question shall be instructed to vote their selection next to the word "NO" within the ballot containing the statement relating to the Question. Once individuals are satisfied with their choice, they shall press the "Vote" button and the ballot shall be cast. Submitted into the public record for item(s) SP.2 on 06/08/2018 , City Clerk Section 8. The Clerk shall cause to be prepared vote -by -mail ballots containing the Question set forth in Section 6 above for the use of vote -by -mail electors entitled to cast such ballots in said Special Election. Section 9. All qualified electors of said City shall be permitted to vote in said Special Election and the Supervisor of Elections of Miami -Dade County, Florida is hereby requested, authorized, and directed to furnish, at the cost and expense of the City, a list of all qualified electors residing in the City as shown by the registration books and records of the Office of said Supervisor of Elections and duly certify the same for delivery to and for use by the election officials designated to serve at the respective polling places in said general election precincts. Section 10. For the purpose of enabling persons to register who are qualified to vote in said Special Election on Tuesday, August 28, 2018, and who have not registered under the provisions of the general laws of the State and Chapter 16 of the Code of the City of Miami, Florida, or who have transferred their legal residence from one voting precinct to another in the City, they may register Monday through Friday, from 8:00 A.M. to 5:00 P.M. at the Miami -Dade County Elections Department located at 2700 Northwest 87th Avenue, Doral, Florida, within such period of time as may be designated by the Supervisor of Elections of Miami -Dade County, Florida. In addition to the above place and times, qualified persons may register at such branch offices and may also use any mobile registration van for the purpose of registration in order to vote in the herein described Special Election during such times and on such dates as may be designated by the Supervisor of Elections of Miami -Dade County, Florida. Section 11. Todd B. Hannon, the Clerk, or his duly appointed successor, is hereby designated and appointed as the official representative of the City Commission in all transactions with the Supervisor of Elections of Miami -Dade County, Florida related to matters pertaining to the use of the registration books and the holding of said Special Election. Section 12. The Clerk shall deliver a certified copy of this Resolution to the Supervisor of Elections of Miami -Dade County, Florida not less than forty-five (45) days prior to the date of the Special Election. Section 13. By a four -fifths (4/5ths) affirmative vote, the City Manager is authorized2 to execute the Escrow and Fifth Modification and to deliver to the City Attorney, on behalf of the City as Escrow Agent, within seven (7) days of the effective date of this resolution, the executed Fifth Modification. Section 14. The City Attorney is authorized' to take all steps on behalf of the City to comply with the Escrow. Section 15. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.3 APPROVED AS TO FORM AND CORRECTNESS: 2 The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to, those prescribed by applicable City Charter and City Code provisions. 3 If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) 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.