HomeMy WebLinkAboutSubmittal-Commissioner Reyes-City Attorney Memo RE Ultra AgreementSubmitted into the public , r
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CITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Honorable Commissioner Manolo Reyes
Office of Commissioner — District 4 - COM
FROM: Rafael Suarez -Rivas, Chief Assistant City Attorney %
DATE: July 25, 2019
RE: CC -4 - Simple majority requirement to approve the Ultra agreement
at Bayfront Park - Opinion by Judge Rodolfo Ruiz
Matter ID No.: 19-1802
You have written the Office of the City Attorney and requested an analysis of the recent
Circuit Court Opinion regarding the Ultra Festival and, in relation to this opinion, why the City
Commission may approve the Ultra Festival ("Ultra") Use Agreement by a majority vote.
ANALYSIS
In the recent Circuit Court decision in the case of Brickell Homeowners Association, et. al.
vs. City ofMiamil, for brevity referred to here as the "Ultra Case", the court denied the Plaintiff's
Motion for a Temporary Injunction for the reasons stated on the record of the hearing, which record
was attached to the Court's Order. The Temporary Injunction, if granted, would have stopped or
delayed the Ultra event from being held.
To summarize the important provisions of the Ultra Case Order, we provide the following
synopsis:
1. The Court found the Plaintiffs may have had titular or facial standing to bring the
action as they alleged a violation of the City Charter requiring competitive bidding, and a
referendum, for holding Ultra on City owned waterfront property. Nevertheless, the Court found
the law required the Plaintiffs have proven a special injury, different in kind and degree than the
general public if Ultra were held. The Court found the Plaintiffs did not adequately plead special
injury as required by Florida Law so they, in essence, failed to establish the requisite required
special injury to make a valid demand for an injunction.
2. The Court, which presumed for the sake of argument, that if the Plaintiffs did in
fact establish standing in this case, they still did not meet the other elements under Florida law
required to obtain an injunction such as irreparable harm. The Court reasoned that, under Florida
law, the Plaintiff needed to show irreparable harm to obtain an injunction. That is, in this context
that if Ultra is held, the Plaintiffs would suffer an irreparable injury for which there is no adequate
I V` Judicial Circuit Court Case No. 2019 -006750 -CA -01 (Order denying Plaintiff's Motion for an
Emergency Injunction entered March 22, 2019)
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remedy at law. That is a civil action for damages would not suffice to remedy the Plaintiffs' ills.
The Court found irreparable injury was not established or proven by the Plaintiffs.
3. On the Lease vs. Revocable License Agreement ("RLA") issue, the Court
distinguished the Ultra case facts from the Homestead Raceway case. In the Homestead Raceway
case, which involved the City allowing a race over its streets, the Court concluded that the
Homestead Raceway Agreement was really a lease agreement masquerading or disguised as a
license. As Homestead Raceway was a disguised lease of City land that had not been bid out the
Court invalidated that Agreement.
4. In the Ultra Case the Court found the Agreement in question was a true or bona fide
Revocable License Agreement ("RLA") and not a lease. The Court made the following findings
in ruling the Ultra contract was a true RLA or License and was not a lease:
(a) The use by Ultra was not exclusive, other persons could get to the beach or the
water while Ultra was ongoing. The RLA did not grant Ultra any exclusivity. The
City always has access to the property.
(b) The RLA is a personal contract to Ultra and it is not assignable by Ultra. Ultra
cannot assign or otherwise sell the RLA to any other person or business.
(c) Throughout the Ultra RLA it is stated that this contract is not a lease, and the RLA
does not convey any property rights. There are numerous clauses and sections that
point out no leasehold or tenancy interest or right of possession is conveyed to
Ultra. These attributes are normally required in Florida law to establish that Ultra,
the user, really has a leasehold interest.
(d) The RLA or Ultra License is revocable. Even if prior advance notice of 320 days is
required to revoke, it is still revocable for no cause, that is, at the convenience of
the City or of Ultra (i.e. revocable by either party to the RLA: the City or Ultra).
The Court found all the key components that could turn a license to a lease under
the so called duck test (e.g. exclusivity, assignability, cancellation for cause) are
simply not present in the Ultra RLA,
CONCLUSION
I have focused on all portions of the Ultra Order that distinguish the lease from a license
which is at the heart of your question. The Ultra decision, by concluding and finding that the Ultra
RLA was a true License as opposed to a lease, was in compliance with the City Charter. This
fmding took this contract out of the City Charter provisions requiring competitive bidding and
referendum for sales, leases, or management of City owned waterfront property.2 The City Code
requires bidding for sales or leases of City owned property.3 No mention is made of any such
requirements for an RLA.
Sections 3 (f) (iii), Sections 29-B, 29-C and 29-D, City of Miami Charter.
Chapter 18, Article V, City of Miami Code.
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Under the Ultra decision discussed above, the City Commission can take comfort that a
recent Circuit Court decision found the last used version of the Ultra Agreement was not a lease
of City land, which requires bidding and other measures. Under the Ultra decision, a Revocable
License Agreement is not a lease.
Because the City Commission is not waiving any bidding procedure required by law, which
waiver requires a 4/5th affirmative vote4, it may lawfully approve an Ultra Revocable Licensee
Agreement by majority vote.
My conservative counsel has been in big monetary consideration contracts where there are
concessions and other sales involved to secure a 4/5th bid waiver as a prophylactic or protective
measure. The Ultra RLA, if approved by our City Commission, may seek, as recently held by the
Ultra decision, approval of a Revocable License Agreement by a majority vote.
RSR/dd
Section 18-85(a), City Code.
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